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Copyright 2013 by James Maynard Gelinas. All Rights Reserved.
DON'T FORGET TO WRITE A NUTGRAF!!!
By James Maynard Gelinas
If bad publicity is better than none, Senator
Dianne Feinstein (D-CA) can rest easy knowing that her recent offending-the-public relations strategy has been a resounding success. Because at a recent Senate Judiciary
Committee hearing, she took a rude swipe at bloggers and independent writers while speaking in
support of a legislative amendment she and colleague Dick Durban had crafted that would limit access to a proposed federal reporter's privilege. Whereupon Matt Drudge, the well-known Internet news aggregator and perpetual
anti-government gadfly, called the Senator a “fascist” via Twitter.
The bill, S.987: Free Flow of Information Act of 2013 (Govtrack), proposes to ostensibly offer a federal privilege for reporters in the event of grand jury or judicial subpoena. Similar to what attorneys and medical practitioners already enjoy, it's intended to limit the circumstances that government could compel testimony from reporters by subpoena. Thus, “shielding” journalists and their sources from judicial oversight in some instances.
The bill is based on a prior efforts since 2005 to enact a shield law in the wake of former New York Times reporter Judith Miller’s eighty-five day jail term. But she wasn't the first cause célèbre of a reporter's privilege. In fact, there's a long history of press organizations arguing for reporter's privilege. State protections began over a century ago. And attempts at winning a federal shield go back decades. Reporters have tried for a federal shield so many times, and for so long, it’s like that ugly guy at a bar who keeps getting shot down by the hot babe. One of these days she’ll be drunk enough and he’ll get lucky. And is congress ever in a doozy of a bender these days.
So you'd think journalists would be esctatic at the prospect of the Obama administration finally fulfilling a longstanding 2008 campaign promise to promote and sign it into law. But variants of this bill have had a tortured six year long history of failure. During that sausage-making legislative process, its been eviscerated by national security exemptions and limits on who would qualify.
To make matters worse, Obama Administration support (Lennard) came seemingly from out of nowhere just after Justice Department officials had been caught spying (C. Savage, Kaufman) on over one hundred Associate Press reporters. Which wasn't the first time. That reporters are suspicious of administration motives behind the timing of this announcement would be an understatement.
Which, combined with Senator Feinstein's amendment strictly limiting access to the privilege to commercial journalists, has created a firestorm of protest among freelancers, independent writers, and bloggers. And this isn't the first time Senator Feinstein attempted to exclude freelance journalists and independent writers from privilege under a proposed shield law. She tried the same thing in 2009 during debate over a prior revision of this bill.
In speaking before the committee, Senator Feinstein argued that only those with "bone fide credentials" - real journalists, certainly not bloggers - should be granted such privilege. The amendment would exclude those she and Durbin deemed to be non-professionals.
Her words on the matter were stark:
C-SPAN: Sep 13, 2013. Senator Feinstein speaking before the Senate Judiciary Committee
Sen. Feinstein's remarks haven't made her many allies among bloggers and freelance writers. But Drudge has a business stake in the matter. As noted in a subsequent Tweet, a federal judge once ruled he didn't qualify to be a journalist. What would happen to Drudge and his media company given the proclivities of Feinstein and her cohorts in congress?
And then there's the example of videographer and blogger Josh Wolf, who spent an astonishing 226 days in jail for contempt of court. (US reporter ends record jail term). He'd refused to hand over raw unaired video tapes of a protest in San Francisco during the G-8 summit. Though California has a state shield law, authorities chose to subpoena him to appear before a federal grand jury. According to Wolf, he offered to allow a judge to view the footage to determine relevance, but was refused. Instead, the court demanded immediate and uncompromising compliance to hand over everything he had shot. This, while The Washington Post’s Howard Kurtz openly wondered (Kurtz), “is he a journalist?” Yet Judith Miller, former New York Times writer who also spent 85 days in jail for contempt, didn't doubt his journalistic credentials. Calling him “...among the earliest video-bloggers,” she appealed for a federal shield law to protect him and “...the public's right to know.” (Miller, In Prison)
And then there’s the travel writer and blogger Steven Frischling, who, in the wake of the underwear bombing in 2009, obtained a TSA security directive anonymously by email and published it. In response, DHS officials drove to his house in Connecticut (Zetter) to conduct a highly contentious interview. According to Frischling:
Not withstanding that some blogs do publish poor and amateurish work, there is a deeper issue at stake. Because, by government defining who is and who is not a journalist such a provision has broad First Amendment implications for all citizens.
It’s as if, in the name of a free press, Sen. Feinstein would implement a class system intended to limit access and create barriers of entry to old-school publishing. A kind of Newspaper Protection Act disguised as defense of journalism and free speech, but where independent writers became relegated to the 'disorganized press' - a plebeian underclass conspicuously cut loose from engaging in the national conversation.
But, the Senator wasn't content to simply promote a contentious position through dry policy debate alone. No, the good Senator poked her rhetorical stick into a blogging-bees-nest and riled up a swarm of angry retorts that reverberated across the Internet like tsunami waves across an ocean. For her statement seemed to express severe disdain to a large community of independent writers, some of whom have contributed significantly to journalism. Yet, under her proposed amendment, these people would lack those bone fides specified to determine eligibility for coverage.
Which clearly got the amendment and proposed press shield bill considerable nasty publicity. One might call the approach: never let a boring policy matter get in the way of good mud flinging. And she can stand tall in knowing that much of the mud tossed back comes from a rabble underclass of unprofessional writers and not a commercial press corps largely supportive of her effort. So I suppose one bright side for the Senator is that, at least according to her, such consternation from bloggers isn't really bad press if it didn’t come from the press at all.
After about a month bad exposure, the committee quietly made some cosmetic changes to Feinstein's amendment and passed the deal upward for a floor vote (D. Savage) in the Senate. But so much splattered mud conceals a truly serious debate. Is it in the public interest for government to define certain classes of people and institutions who would receive differing standards of speech protections? How might this impact speech protections traditionally viewed as equally applied to all citizens?
Reporters like to think they're special. That, just as the clergy, the nobility, and the rabble are three estates holding up pillars above which society rests, they too wield an influence worthy of equal recognition. A Fourth Estate, as Edmund Burke coined it. The ideals of which would have Journalism functioning as an institutional check against public corruption. A kind of publishing police of the polity, stabbing a blow at official sleaze with a stroke of the pen rather than a slice of the sword.
The logic goes like this: Louis Brandeis once wrote, “sunlight disinfects.” By which he meant that publishing facts about wrongdoing cleans society of the infection of corruption. But to get proof of wrongdoing it is sometimes necessary to protect the identity of sources, who rightly fear reprisal for their whistle-blowing. But government is jealous of its power. Merely embarrassing officials or their allies might be cause for retaliation. A whistle-blower could lose a needed job, or even his life if the secret disclosed were important enough. Few are willing to risk so much on principle alone. Without restraint on government in prying out the identities of reporters' sources, the availability of stories might dry up, thus diminishing the cleansing power of journalistic sunlight. And so an important public good would be lost.
Not surprisingly, government has an opposing viewpoint. Suppose law enforcement believes that a journalist's source is witness to a serious crime? In such a case, an official investigation might lead to criminal charges and ultimately convictions against major wrongdoing. Since courts, and not the press, are society’s official mediators in deterring crime, government argues there are circumstances when a reporter should be compelled to reveal the identity of an anonymous source. It's a better public good than the loss an absolute reporter's privilege might entail.
Like most aspects of society, an ethical tug of war between various stakeholders forms. In this case, the press versus government, occurring within a web of individual circumstances and power relationships that impact the balance of institutional rights and responsibilities.
Suppose a judge with ties to the Nixon Administration had issued an order to compel Woodward and Bernstein to reveal Deep Throat’s identity in order to suppress the investigation. What if, after all recourse by appeal, that judicial order stood? Some reporters have faced just those circumstances and have chosen to refuse the court order anyway. With the consequence sometimes being criminal contempt of court citations and even jail terms.
One early example of a journalist jailed after having been cited for contempt was that of Marie Torre in 1959. Then a reporter for the New York Herald Tribune, Ms. Torre wrote that a CBS executive had made disparaging remarks about the actress Judy Garland. Ms. Garland sued CBS for defamation and deposed the columnist to compel her reveal the identity of that source, as well as the identity of the executive in question.
Ms. Torre refused. She asserted a First Amendment right to withhold speech on the grounds that it was a “threat to freedom of the press.” But though the court agreed that there were some constitutional implications to such questioning, the judge continued to require her testimony on the grounds that a “…reporter still had to testify when information goes to the ‘heart’ of the plaintiff’s claim.”
But Ms. Torre wouldn't budge and so spent ten days in jail after having been cited for criminal contempt. (Carter, Franklin and Wright. 549)
During a filmed interview prior to her short incarceration, the reporter was asked what she hoped to accomplish by her decision. She responded:
In other words, Ms. Torre hoped her sacrifice would lead to enacting a press shield law. Which would ostensibly provide some future protection to journalists from being compelled by grand jury or judicial order to divulge information obtained the in course of newsgathering. Her sacrifice might prevent a future court from compelling the release of notes, documents, or general evidence such as unpublished text or photographs. And in so doing, she hoped, the free-flow of information to the public would be served.
Supremes Sing the Press Shield Blues
Marie Torre wasn't standing alone against the gale force winds of government by her intransigence. By the late nineteen fifties the question of shield laws had been widely debated in states throughout the nation.
The first such state statute was enacted in 1898 in Maryland. Across the years more followed until now forty-nine states and the District of Columbia provide some type of press privilege or press shield law for reporters. But its a patchwork quilt of uneven protections state-by-state that has no impact on limiting subpoenas by federal action, such as with grand juries or under order by a federal judge. And, as we've seen, even a state judge might rule someone unqualified for state press shield protections by claiming the person isn't a journalist. Thus, even though state laws might offer some limited privilege, many reporters face severe hurdles in using what little protections are available. (Carter, Franklin and Wright. 549)
But this didn't daunt Marie Torre. She argued that there was a privilege implicit to the First Amendment. That, for news gathering to function, reporters should be protected from judicial inquiry, otherwise journalism would cease to function because of lost sources. And with her civil disobedience, she set a precedent repeated by reporters across the socially tumultuous 1960s.
And yet some of the most stalwart supporters of the First Amendment voiced grave concern about the constitutionality and desirability of giving such special protection to journalists. That, in so doing, serious crimes might be shielded from law enforcement in the process. In 1971, Michigan Law Professor Vince Blasi published a study on the newsman privilege titled, The Newsman’s Privilege: An Empirical Study. He interviewed forty-seven reporters and editors of major newspapers, and contacted a large number of others around the country with a questionnaire.
The report concluded by agreeing with law enforcement officials and judges that sometimes, “…information in the hands of newsmen might enable the police to prevent future crimes or to apprehend fugitive felons.” And further that: “Some journalistic endeavors border on criminal activity, such as participation in acts of demonstrative vandalism or receiving stolen documents.” (Blasi qtd. in Carter, Franklin and Wright. 550) Thus, there is a compelling law enforcement argument against privilege, for reporters are citizens under the same societal obligations as anyone else.
It also challenged the notion that subpoenaing reporters and compelling testimony has the effect of ‘drying up’ availability of sources. Instead, the author termed the negative effect a ‘poisoning of the atmosphere’ that damages ‘insightful and interpretive reporting.’ Further, he argued that ‘newsmen prefer an ad hoc qualified privilege to an inflexible qualified privilege.’ And that the most important concern for journalists is the protection of the ‘identity of anonymous sources’ rather than protection of ‘contents of confidential information.’ (Blasi qtd. in Carter, Franklin and Wright. 551)
But, in a minor blow to Blasi's academic career, just as the study went to print the Supreme Court decided to resolve the matter of a constitutionally implicit press shield. The Court combined three separate cases, each of which had different outcomes yet similar circumstances. The goal was to rationalize these discrepancies and set a consistent standard.
In Kentucky, a state that had a shield law in place, a reporter had interviewed a source about hashish production and witnessed the drug creation process first hand. He was subpoenaed, whereupon a judge ruled that the shield law only protected statements made by a source but not observations of criminal wrongdoing. Therefore, the judge compelled testimony about what the reporter had witnessed. The reporter refused and appealed.
In Massachusetts, a television reporter contacted local Black Panther Party officials, filmed them, and then gained their trust. While attending a party meeting, the reporter expected to witness a police raid that didn’t occur. No story was written. He was summoned before a grand jury about that story never published and refused to answer any questions. The trial judge demanded testimony on the grounds that no state shield law existed, and further argued hat no shield was implicit in the First Amendment. On appeal, the Massachusetts Supreme Court affirmed that lower court ruling. It was then appealed to the Supreme Court.
These discrepancies convinced the Supreme Court that clarity was necessary and combined them into a single case known as Branzburg v. Hayes. The question the justices intended to resolve was: Does a reporter's privilege in limited or complete form exist implicitly in the First Amendment? Because if so it would fundamentally alter the power relationship between law enforcement and the press. A transition toward greater speech freedoms that had been ongoing since 1930s, when prior restraint - or censorship - laws had been struck down.
Justice Byron White wrote the majority opinion in a highly contentious split 5-4 decision. In thinking through the problem his logic went like this:
To get at that question, Justice White asked whether reporters have any other special privileges. For example, are they privileged in news gathering over regular citizens? He argued not:
There's only one privilege that allows for privilege against testimony and that is in the Fifth Amendment right against self-incrimination:
But Justice White went much further. He also also unambiguously challenged the idea of federal reporters’ shield protections in general, on the grounds that doing so would run the risk of government defining the role of journalists and thereby creating from whole cloth special classes of speech protection in the process.
That is, government would take it upon itself to decide what is news and who are journalists worthy of protection, and in so doing diminish speech rights guaranteed as equally protected. Or said another way, if journalists have special privilege and bloggers aren't news-gatherers, to paraphrase Orwell's Animal Farm, then some reporters have more equal speech protections than others.
His words are direct and to the point:
The Ghost of Justice Byron White channeled the same point via Twitter:
Justice White mentioned other non-journalistic roles where citizens inform the public, as if to make the point that journalism's contribution to the free flow of information isn’t some extraordinary function inherent to their jobs, but a civic freedom necessary to a range of professions.
One argument is that because those who did enjoy those protections would gain a speech advantage over, “lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author … [who] relies on confidential sources of information.” This advantage would give the protected class an unequal footing in the collection of sources that might ultimately reduce the “free flow of information to the public.” Because who would be willing to speak anonymously to an academic researcher on a sensitive matter if it became clear they were not protected while some subset of other 'protected journalists' were?
Like all 5-4 split decisions there was strong disagreement. Justice Stewart wrote the dissent, the crux of which was built upon two large points.
First, that the free flow of information is crucial to democratic decision-making by the public; an argument that the majority decision doesn’t challenge.
But second, and more importantly, that grand jury standards for compelling evidence gathering are weak. As testament to lax expectations upon prosecutors in grand jury proceedings, according to Tom Wolfe, former Chief Judge of the New York Court of Appeals, Sol Wachtler, once jokingly remarked that a grand jury could indict a ham sandwich given the right prosecutorial prodding.
Speaking to the potential for abuse within the grand jury system:
But that high bar to subpoena power was widely opposed by law enforcement, viewing the standard as diminishing of their investigative authority, for Stewart clearly meant that such a privilege applied to any citizen engaged in journalistic endeavors. What if everyone subpoenaed claimed journalistic privilege as a reporter? Would the grand jury process be required to determine privilege status as part of everyday investigations?
Regardless, Justice Stewart lost. The Supreme Court ruled that reporter’s privilege implicit to the First Amendment did not exist; that reporters, when called upon to testify, must answer questions put forth to them; that those who didn’t respond when sworn to truth still risked contempt of court citations just as they did before. In effect, it was a decision that retained the status quo. It may not have enshrined a new First Amendment protection into the constitution, but neither did it reject a shield as unconstitutional. The potential for congress to create one by legislative action remained.
Yet while seemingly changing nothing, Justice White’s words warning about the unintended consequences to speech protections had a significant impact on the debate over a federal press shield law. Very few people, other than journalists and press organizations, seemed to like the idea of giving government the authority to pick and choose winners and losers when it came to free speech.
At first glance it seems almost obvious, of course journalists should be able to protect their sources from government prying eyes. Until the second-order repercussions of what it might mean to give reporters a special privilege over ordinary citizens becomes clear. And that doesn't even consider the possibilities for abuse. What would happen if a bad journalist exploited a shield law?
No Good, Very Bad, Terrible unJournalists
The
notion of a reporter's privilege safeguarding the public's right to know presumes good faith by journalists. But what if a reporter used that privilege as a shield against inquiry of
false sources or false quotes? It’s not as if reporters haven’t published fake claims before. The two most prominent examples recently of newsmen having been caught fabricating news are Stephen Glass of The New Republic and Jayson Blair of The New York
Times.
Stephen Glass had a meteoric rise to assistant editor at The New Republic after a series of high profile stories. Yet in a serendipitous downfall where a market competitor caught him in the act, he was caught fabricating numerous facts about a 1998 story. It it, a supposed computer hacker had been hired as a consultant by a company he had previously targeted. Republic editors looked into a series of suspiciously good quotes that appeared false. But after thorough review it was discovered that neither the hacker nor even the company itself existed. Further, Glass had taken extraordinary measures to prevent his editors from discovering the falsification. He'd even created a fake corporate website to convince them of his deception. It was intent to deceive on a grand scale.
After being caught, editors from The New Republic began an internal audit of all of Glass’ stories and wrote two mea culpa editorials about the matter. The first simply owned up to the problem (The Editors: To Our Readers ). But the second went into details about extensive fabrications discovered (To Our Readers: A Report). They reported that at least twenty-seven of his forty-one stories contained at least some fabrications. That is, a majority of his reporting contained fiction.
After this, Glass’ career as a journalist was ruined. But this sad event has impacted his life long after he stopped claiming to hold up pillars of the fourth estate. For even though he subsequently obtained a law degree from Georgetown University, and has passed the Bar in two states, he has so far failed certification by Bar Examiners on grounds of moral unfitness. That is, because he wrote a string of lies in print over fifteen years ago, to this day his career outside journalism is stalled too. Currently, a California Supreme Court case over Glass’ fitness to practice (Green) in that state is pending.
There's another reporter who gained widespread infamy for lies promulgated in the name of truth. In 2003, Jayson Blair, a New York Times reporter, was caught plagiarizing a report that had previously been published in The San Antonio Express News. A subsequent internal Times investigation found additional instances of plagiarizing in other articles, including from The Washington Post, The Plain Dealer and The New York Daily News.
But that's not all. Additionally, Blair fabricated anonymous quotes and sources for numerous prior stories. He even claimed travel to places where he had never gone to conduct interviews that had never taken place. Or sometimes had simply been handled over the phone.
After the investigation, The Times’ editors wrote a long mea culpa (Barry, et al.) editorial outlining Blair’s deceptions, which they called “…a profound betrayal of trust and a low point in the 152-year history of the newspaper.”
But if the examples of Glass’ and Blair’s unethical behavior were simply two bad apples in a journalistic barrel otherwise filled with fresh fruit, one might be willing to overlook the matter. That is, to conclude journalistic misconduct is so rare to be concerned with how it might impact a press shield law is wasted effort. Not so. For example, according to a Poynter report there were thirty-one instances of plagiarism or fabrication (Silverman) in 2012 alone. Which ignores the many that occurred each previous year since they began tallying a record in 2005. Which came about because Jayson Blair brought it to media attention. Nobody bothered to tally the issue for a yearly report before then.
It’s an immensely serious problem, one that a journalist’s privilege could help hide. But if the potential of abusing a journalist’s shield to hide overt fabrications represents a kind of nuclear-worst-case-scenario, then what about those who might abuse the privilege by protecting a source they knew – or should have known - to be promulgating false information? In other words, the problem of publishing a correctly recorded quote that had been uttered by a real source, yet later proved to have been factually incorrect. This is more of a gray area, for in this case there would be no claim of promulgating fabricated news by the journalist. Instead, a reporter’s privilege might protect journalists and their sources even when both source and journalist knew the claims that had been published were self-serving, defamatory, misleading or even an outright lie.
First Principles Ignored by the Unprincipled
In a media environment where cynical partisanship spins untruths as part of a news business model, it might seem absurdly naïve to believe that the mission of journalism is simply telling the truth. Otherwise, what would be promulgated is considered nothing more than public relations. An entirely different job than informing the public.
Therefore, reporters who engage in civil disobedience to defend journalistic ethics better make certain what they printed is genuinely truthful. That, by protecting a source, it isn't merely a self-serving act. Because telling untruths isn’t journalism and civil disobedience in defense of a lying source isn’t ethical. The same holds for those sources who use journalists for persona, partisan, or even criminal purposes.
The Society of Professional Journalists code of ethics (Farrell) provides guidelines in the use of anonymous sources.
Which might have been heroic had the underlying story about Ms. Miller’s incarceration been about some grand expose of Washington corruption like Watergate; if she had actually defended the republic from criminal abuse by exposing it, rather than protecting criminal conduct within the administration by shielding anonymous wrongdoing. Well then, had that been the case Ms. Miller would have been a perfect cause célèbre for journalistic ethics as depicted with cinematic flair in All The President’s Men.
Except it wasn’t. Instead, the story reads more like an ethically downward spiral of far-fetched scenes from some Ludlum-esque inspired political thriller entitled: The Plame Identity. Because Miller wound up being used by sources deep within the Bush Administration for purposes entirely unbecoming her role. And it wasn’t even her first major scandal of anonymous sources in the Bush Administration. Thus, rather than justifying the need for a press shield, her conduct arguably prompts question into its potential abuse instead.
To explain how this woman became the poster child for press privilege when she had protected a Bush Administration source under investigation for committing a felony, this story rightfully begins after she was jailed for contempt of court. Where in that cell she found herself silenced, yet not so quiet, as others took up her torch for press freedom to speak in her defense before congress.
In July 2005, Judith Miller had just been sent to jail. At the behest of a media industry perhaps somewhat concerned by her jailing but also quite eager to pursue enacting a federal media shield law for entirely self-interested reasons, New York Times commentator William Safire offered stark testimony of risks to journalists before a Senate Judiciary Committee hearing.
He argued that as a result of recent events, reporters felt a “general chill in the air” that might lead to a kind of “mental prior restraint” by journalists.
The term ‘prior restraint’ refers to pre-publication censorship. Long ago, when the printing press was new technology, to control the spread of information and ideas the Catholic Church and governments imposed a licensing system on the ownership and use of a printing press. For example, in 1501, Pope Alexander VI prohibited unlicensed printing. In Great Britain, the licensing act of 1662 created a licensed monopoly for printing that allowed government to limit the kind of material printed.
By the eighteenth century the notion of a free press – that is, a press owner’s right to publish free from government licensing – had become accepted practice throughout England and her colonies. William Blackstone, legal scholar of the era, spoke to the issue of free speech and a free press (Blackstone) in his Commentaries on the Laws of England, published in the late 1760s:
These ideas strongly influenced the founders of the United States when crafting the First Amendment. The idea of a free press as a benefit to the public good is a core philosophical view of the US Republic. And though an immediate pullback from these principles occurred by the passing of the Alien and Sedition Acts of 1798, which jailed people for their political views. But it was roundly repudiated in the election of 1800, when Thomas Jefferson ran a strong campaign against its use. After winning, he pardoned those jailed under the act and it lapsed out of law shortly thereafter not to return for over a hundred years.
In twentieth century American law, the issue of prior restraint found expression by two opposing sets of circumstances. During time of the First World War, with support of President Woodrow Wilson, congress passed both the Espionage Act of 1917 and then the Sedition Act of 1918. The Espionage Act was originally intended to prevent popular opposition to army recruitment, while the Sedition Act prohibited a range of speech offenses, criminalizing ‘disloyal, profane, scurrilous, language’ against the nation.
These laws were quickly put to use. Under the Sedition Act, Eugene Debs, a leader of the Socialist Party, was arrested under the act after speaking against war recruitment and then convicted and sentenced to ten years in prison. The Supreme Court of the day affirmed their constitutionality, with Justice Oliver Wendell Holmes setting the ‘clear and present danger’ test used “...for determining whether speech is protected by the First Amendment,” in Schenck v. United States.
But like in 1800, when the Alien and Sedition Acts were rescinded only two years after enactment, The Sedition Act of 1918 was also repealed just after the war ended. By 1921, under a new administration, President Harding commuted Debs’ sentence also like Jefferson had done with many of those jailed in 1798-99. (Lewis 72)
And a crucial dissent in another case of that era, Abrams v. United States, by Justices Holmes and Brandeis cleared the way for severely limiting government censorship. Holmes, first noting that persecution of dissenting opinion is “perfectly logical” for those who hold “ no doubt of [their] premises” and would “sweep away all opposition.” For by allowing such speech appears as if you “doubt either your power or your premisses.” That is, allowing dissent diminishes the power of your own ideas by placing them in open competition. Yet it is in that “free trade of ideas” where “the best test of truth is the power of thought to get itself accepted” (Brandeis qtd. in Ten Cate 2-3) that truth is discovered and society moves forward. Though the dissent had little impact on those cases decided, it had a profound impact on a future decision about a decade later.
In the 1931 Supreme Court case Near v. Minnesota, the Court ruled on the matter of whether government could punish a writer and then subsequently prevent publication and dissemination of material that might embarrass elected officials’ by exposing alleged illicit activities. It concerned the Minnesota Gag Law of 1925, which outlawed as a ‘public nuisance’ the regular publication in ‘newspapers or other periodicals’ of ‘obscene, lewd and lascivious’ material that is ‘malicious, scandalous and defamatory’.
The weekly periodical in question, The Saturday Press, was a sheet published by Jay Near. He released just nine issues before being charged under the Gag Law, for the offense of alleging that Jewish gangsters controlled local bootlegging, racketeering and gambling in Minneapolis. Further, he'd said that local officials had not pursued these criminals with due diligence.
The state court found for the prosecution, stating that the publication ‘constituted a nuisance’ and “perpetually enjoined the defendants from issuing ‘Any publication whatsoever which is a malicious, scandalous, or defamatory newspaper, as defined by law.’” In a divided 5-4 opinion, the Supreme Court disagreed holding that:
In 1971, President Nixon was three years into a policy of ending the Vietnam War by mounting a heavy bombing campaign. Youth opposition had flared into demonstrations of popular unrest across the nation. During that time, Daniel Ellsberg, a young and idealistic military analyst at the RAND Corporation, had been secretly copying classified documents about war policy during the prior Kennedy and Johnson administrations and squirreling them out the door. He then convinced reporters at The New York Times to publish some of the content.
The collection of studies is known as The Pentagon Papers, and it sparked a fiery dispute between government and the press. The material detailed Vietnam War policies that were embarrassing to the prior Kennedy and Johnson administrations but did not detail specifics of then current ongoing operations in war planning and execution.
When The Times published its first story in June, within one day the Attorney General had contacted the paper by telegram to warn them that continued “publication was prohibited by the Espionage Act under which spies are prosecuted.” (Carter, Franklin and Wright 348)
Attorneys at The Times were unimpressed, determining that their release did not represent a “clear and present danger,” in Justice Holmes’ words, to successfully conducting the wartime policies of the United States. Further, they believed it was in the public interest to publish it. Responding by telegram, they wrote that “... [we] must respectfully decline your request ... believing it is in the best interest of the people of this country to be informed of the material.” (Carter, Franklin and Wright 348)
A gutsy move given that the papers were classified Top Secret and it was a violation of criminal law:
Based on this the judge refused to grant a full injunction, thus allowing The Times to continue publication. In his opinion, Gurfein wrote:
Acting in a remarkably short time, only two weeks after The Times had first begun publishing the Papers, the Court issued a 6-3 decision against further censorship. The opinion begins:
The well known constitutional scholar and popular author Anthony Lewis explained the Court's reasoning in Make No Law:
Keep that in mind as we reconsider William Safire's testimony before the Senate Judiciary Committee. A place where he complained under oath about a chilly air blowing through the hills and valleys of journalism, saying it had become so cool that it evoked within him shivers of ‘mental prior restraint.’ A trembling self-censorship so frightening that even he, an Atlas of the Press at that exceptional institution The New York Times, where reporters who write ‘all the news that's fit to print’ proudly hold up the pillars of our national fourth estate, the columns of which he feared might topple and crumble under the blow of Poseidon Fitzgerald’s brisk mint-fresh puff.
Could the jailing of Judith Miller have been truly so crucial to the free flow of information? Was her incarceration for contempt of court as serious as preventing Jay Near from publishing scandalous claims about Jewish gangsters running Minneapolis, or classified documents about defunct war policy enacted by prior presidential administrations?
Anonymous Sources Say the Darndest Things
If Judith Miller had chosen a different career path, it's hard to believe she wouldn't have trampled the ground on her way to success going there as well. And in so doing, she'd have left a trail for other women to follow. Because she was a trailblazer.
When Miller joined The Times in the late 1970s, she was one of only a few women accepted into the fold at a national paper of record in a field dominated by men. She fought her way to the top, sustaining that position through the 1980s as The Times' Cairo bureau chief. By the mid-1990s she'd written a book on Islam, God has Ninety-Nine Names. And in the process, built relationships with some of the most important policy-makers of the Middle-East and US government. There is no doubt this success was built by hard work.
And in her defense, it’s fair to say that Miller was by no means the only US reporter or press outlet to forgo skepticism of Bush Administration claims in the buildup to the Second Gulf War. But unfortunately, she was also center stage in performing a lead role cheerleading that policy. Journalists aren't supposed to join-in and become part of the stories on which they report. Yet she promulgated numerous false claims by anonymous Bush Administration officials of an alleged Iraqi WMD program. These statements became instrumental in building public support for a war policy that became a slow-motion tragedy for America still unwinding to this day.
The Bush war policy was formed, according to former White House terrorism expert (Clarke) Richard Clarke, “While the Pentagon was still burning…” after the attacks of 9/11. Yet even in the immediate aftermath of 9/11, there was no factual connection between the terrorist attacks and Iraq. Nor, according to weapons inspectors, any hard evidence of a WMD program either. As Clarke wrote, “despite being told repeatedly that Iraq was not involved in 9/11, some, like Cheney, could not abandon the idea.”
According to public statements, the invasion policy was based on preventing an unknown potential for the development of weapons of mass destruction that hadn't been found. As Bush's National Security Advisor Dr. Condoleezza Rice explained on national television, “...there will always be some uncertainty about how quickly he can acquire nuclear weapons. But we don't want the smoking gun to be a mushroom cloud.” (Blitzer)
According to this policy, factual truth of the matter would be determined after the war had been resolved in the United States' favor. Such concerns were, as writer Ron Suskind anonymously quoted a Bush White House aide (Suskind), “Part of the reality based community,” whom the aide defined as people who, “believe that solutions emerge from your judicious study of discernible reality.”
Continuing, the source went on to say:
Thus, considering what administration officials said both on and off the record, it probably isn’t surprising that some anonymously sourced claims by Bush Administration officials might not have been uttered with much interest in veracity. But skepticism of motives by a source is just the kind of concern journalists are ethically bound to consider. Because that essential free flow of information, a stream of news the fourth estate supposedly exists to help a functioning democratic process, can’t possibly exist when facts are absent from published reports.
But such concerns didn’t stop Judith Miller in her zealous quest for a scoop. In September 2002 she co-wrote a piece with Michael Gordon claiming that Iraqi President Saddam Hussein had attempted to obtain special aluminum tubes (Gordon, Miller) crucial to enriching uranium as a step in the process of making an atomic bomb. Citing only “Bush Administration officials” as a source, the story said that these tubes met special technical specifications for nuclear weapons production. Unnamed Iraqi defectors were cited to saying that acquiring nuclear weapons was a top priority for Iraq. And another unnamed defector claimed chemical weapons development was a focus as well.
The story didn’t cite a single named source from the administration to back these assertions. But Vice President Dick Cheney, appearing on NBC’s Meet The Press the very morning that story appeared in the paper, cited the Miller/Gordon story as evidence of Iraqi attempts at acquiring nuclear weapons. That was when Condoleezza Rice uttered the mushroom cloud comment on CNN to promote the war policy. A month later, President Bush repeated that ‘mushroom cloud’ phrase the president Bush signed into law congressional authority to go to war with Iraq.
And it wasn't as if there were no specialists in the field debating those claims. Some highly credentialed weapons inspectors voiced doubt that those aluminum tubes were meant to enrich uranium. Shortly after that Times article was published, David Albright, physicist and weapons inspector at the Institute for Science and International Security, wrote a report challenging the administration’s claims:
Bob Simon of CBS News, spoke to the circular nature of administration officials leaking information to Miller and then pointing to the resulting story as self-serving evidence in support of their own war policy:
Then, a month later in December, The Times published another Miller story about a purported CIA investigation of smallpox deliveries to Iraq by a recently deceased Soviet scientist. It cited unnamed administration officials who spoke about revelations by an informant, “…whose identity has not been disclosed.” (Miller Germ Weapons) That is, an US government source gave Judy Miller a disclosure from someone he wouldn’t name, for her to print unattributed. Or, publishing hearsay from a second hand anonymous source. And The Times’ editors determined that it was news they considered ‘fit to print.’
In this May 2003 Slate overview (Shafer) on misrepresentations published by the New York Times under Miller’s byline, the report concluded that:
In early 2003 Schaffer had to give Judith Miller the benefit of the doubt. Yet even that early on something smelled fishy. And as later became apparent, the stink really was rot and not fancy New York perfume. For not a single one of her claims in those stories were ever verified.
But concerns for prior accuracy didn’t stop Judith Miller from continuing to contribute to the national discourse on poor journalistic ethics. For right about the time Schaffer was publishing his overview of Miller’s problematic reporting in Slate, she was interviewing a Sr. Administration official in Vice President Cheney’s office. A source whose statements ultimately led her nose for fake news straight to an independent counsel’s subpoena. And when she refused to testify to reveal the source’s identity, she wound up in detention. And there was where her friend and New York Times Colleague William Safire pointed his finger as he pounded the bully pulpit in her name, she having become a cause célèbre in absentia for the enactment of a national journalist’s shield law in an ironic capstone atop the pillars of the fourth estate.
The Plame Identity
Those in the establishment press like to believe their reputation is build upon the success of great investigative reporting. That, in making civilization better, a sacrifice of those stained by corruption is necessary. An essential cleansing of the social order, where like detritus washed from an open wound in the body civic, sleaze is rinsed off with a public spotlight wielded by the greats of institutional journalism.
It's a nice ideal, too bad it isn't always true. Two people undeservedly burned by that spotlight were once a DC power-couple. One, a diplomat and the other a covert C.I.A weapons proliferation specialist. That is, until one of them went to Niger for the Bush Administration on a nuclear fact finding mission and found the wrong facts. Officials didn't want those facts in deciding a matter of grave national concern, and they ignored them. So the diplomat took an absurdly principled stand and shone a spotlight on actual facts in a newspaper of record. The same newspaper, ironically, which had also printed Judith Miller's unfacts. And then that cleansing spotlight was turned around by Bush Administration officials, who pointed it bright and hot at that diplomat's spouse. The C.I.A agent. And all hell broke loose.
It was Robert Novak, of The Washington Post, who first published the officer’s identity. That occurred in October 2003, three months after the diplomat had published those facts and six months after the war had begun. But Novak wasn’t the only reporter who knew the officer’s identity. A number of other high profile journalists, including Walter Pincus, also of The Washington Post, Tim Russert of NBC News, Matthew Cooper of Time Magazine, and Judith Miller of The New York Times, had all been leaked the name. Some aggressively pursued the story while others backed off, probably because revealing a covert C.I.A agent's identity is a bad idea. But it was Novak who spilled the beans.
The agent's name is Valerie Plame. Before the leak, her job had been as an undercover C.I.A. operative investigating weapons of mass destruction proliferation in the Middle East. And yet the Bush Administration had invaded Iraq claiming that the country was engaged in an illicit nuclear, biological, and chemical weapons development program. Why would Bush Administration officials leak the name of a covert proliferation specialist while conducting a war ostensibly over weapons of mass destruction development?
About a year and a half before, in February 2002, Plame’s husband, Joe Wilson, had gone to Niger at the behest of the C.I.A. per her recommendation to investigate the possibility that the African nation’s mining industry had been exporting nuclear materials to Iraq. Such an event would have been US casus belli for military action, since were it true it would have represented a direct UN Security Council violation against Iraqi weapons of mass destruction procurement that was a holdover from the prior 1991 conflict.
A foreign services ambassador and former US diplomat in Iraq, Wilson was intimately familiar with the situation and history. But while there he concluded that the supposed transfer was impossible and hadn’t occurred. So he dutifully reported back his findings and moved on. But it was problematic for the Bush Administration. For example, Bush had planned to use findings of a Niger transfer to Iraq as part of an October 2002 speech he was to give in Cincinnati. It was a keystone to arguing the case for war yet had to be removed. In fact, the claim seemed so crucial that by January 2003 it returned in modified form during Bush's State of the Union Address. The President made a reference to that nonexistent nuclear transfer anyway, even though it had previously been removed and was known problematic. But truthful or not, it made the case and in March the invasion of Iraq began.
Yet Joe Wilson knew it was bogus. He responded with a scathing public editorial The New York Times outlining his findings in Niger, or lack thereof. And publically challenged the Bush Administration’s case for a then ongoing Iraq War, embarrassing the administration with the spotlight of truth.
The CIA didn’t like having the identity of a covert officer revealed by anyone, not even by sources deep within a Bush Administration they presumably worked for. There were messy problems like risk to the agent's family; risk to everyone the agent knew and worked with; risk to sources that supplied crucial information. Not to mention the immediate destruction of an expensive cover operation that had been meticulously put together and maintained.
Officials at the Justice Department almost immediately announced they had opened an investigation (Hucheson, McCaffrey), and rumors were published speculating about a special prosecutor. U.S. attorney, Patrick Fitzgerald was assigned, whereupon he opened an investigation and quickly subpoenaed a number of journalists to determine the source of that leak.
In a January 2004 Vanity Fair published a profile of Plame and her husband:
During a drawn out grand jury investigation and resulting criminal prosecution process, it was learned that Novak’s primary source had been Deputy Secretary of State Richard Armitage. Karl Rove, Bush’s Sr. Political Advisor and elections specialist, had confirmed Armitage’s statements about Plame to Novak as a secondary source. But it wasn't just Armitage who had been handing the name out to reporters. Karl Rove had been the primary source for Matthew Cooper. And there was someone in the Vice President’s office as well.
Why were so many Sr. Bush Administration officials peddling this story around to reporters? One would think that if it had been an unvetted leak the story should have come from a single source. An issue Fitzgerald wanted to untangle. The special prosecutor already knew that Rove and Armitage had been among the leakers through testimony by Robert Novak, Walter Pincus, and Tim Russert. But he didn't have testimony by Cooper or Miller. And he had an inking that another one of the leakers was the Vice President’s Chief of Staff, I. Lewis (Scooter) Libby. And he thought proof of that might take him straight to the Vice President.
Both Rove and Libby had provided voluntary written waivers for their confidentiality. Robert Novak, Tim Russert, and Walter Pincus all said they had chosen to testify because they didn’t believe that given the waiver they had an obligation to protect their source’s identity. Yet Matthew Cooper and Judith Miller had both received the same waivers as well. But by some strange legal twist, their attorneyFloyd Abrams, had recommended the two reporters fight (Carlson) their subpoenas. Which left Libby as an unconfirmed source of the leak.
Fitzgerald was pretty sure Libby had given the name out too. So he directly questioned Libby on the stand about the timeline of the leak, asking pointedly if he had spoken to Miller prior to Novak’s column. But during questioning Libby claimed otherwise (Libby, grand jury testimony). And further, his testimony indicated, though did not prove, that revealing Plame’s identity had been part of an overall strategy to approach The Times’ David Sanger and Washington Post’s Walter Pincus for some reason that he didn’t remember.
With Miller steadfastly refusing to testify, by October 2004 she was cited for contempt (Leonnig). Across several months she appealed the decision. In April 2005 the DC Court of Appeals refused to rehear (Buell) her case, and by June the U.S. Supreme Court affirmed that decision when they too refused to hear (Henry) the case. And it was over. By early July 2005, Ms. Miller donned an orange jumpsuit and scooted off to jail for Scooter.
That was when William Safire spoke at a Senate Judiciary Committee hearing in support of a press shield law, where he angrily remarked that a ‘chill was in the air’ from Miller’s incarceration; one that evoked seething words a ‘metal prior restraint’ prevented him from writing. But as she sat in that detention cell, it seemed she was not so cause célèbre for her cohort Matthew Cooper. He had initially refused to testify, but he quickly relented (Roh) just before being cited for contempt as well. And thus her example inspired something different in Cooper from that of Safire.
But things change. While incarcerated Miller and Cooper dumped their lawyer, Floyd Abrams, and obtained new counsel. The new attorney discovered Libby’s waiver written long before which had allowed her to testify all along. The same waiver given to Novak, Pincus, and Russert. And Cooper as well. So, ironically, it turned out she’d spent all that time in jail defending a journalistic principle that hadn’t been in contention to begin with. Something Novak, Pincus, and Russert had already figured out.
Anyway, like the reticence of a blushing bride finally breaking down far too late in the evening, when it came time to testify Miller’s dated notes showed that Libby had – indeed – spoken of the matter before Novak’s column had been published. And though Fitzgerald couldn’t prove conspiracy going up to Vice President Cheney, he at least had Libby’s skin for lying under oath.
Miller was released in late September 2005 shortly after giving testimony. Though in gaining freedom, she didn’t return to a heroine’s welcome when she arrived at The Times’ newsroom. In fact, according to this 2005 report in Vanity Fair, Miller was so wary about how her colleagues might react when she arrived that she’d brought a friend as escort. Describing the scene, Mnookin wrote:
Ouch.
A few weeks after that bit of Maoist self-criticism, the paper engaged in a final internal cleansing when Miller was quietly shoved out the front door into that New York chilly-late-fall November air, to build a successful new career as freelance pariah. Whereupon those in the Times’ newsroom were finally able to look with a sigh of relief upon her figure diminishing in that rearview mirror, dust billowing out from behind as everyone collectively drank a stiff shot and floored the gas pedal.
But a dutiful Miller went ungently into that sour night, grasping that torch of press freedom from Safire and plastering herself upon Fox News television wall-screens like some pin-up doll for unworthy journalistic privilege. There she pimped the sad story Safire had spoken of to the Judiciary Committee, those pundit boobs-on-the-tube nodding dutifully at her oh-so-serious points. A tale whereby through some horrible prosecutorial overreach, this nice, pretty little yuppie girl heroine had been consigned into some dank dungeon cell by an evil government force called a judge. Of course, conveniently ignoring the damage she’d done the nation or a Supreme Court that had been entirely unsympathetic to her supposed plight. But it makes for good TV.
Phrasing the matter in her usual flamboyant manner, Arianna Huffington wrote, “…having Judy Miller be the face of such laws is like having Amy Winehouse doing PSAs for the Partnership for a Drug Free America.” (Huffington)
Double Ouch!
But if Judith Miller wasn’t listening then she still doesn’t hear today. Continuing to pound that haggard pulpit in promoting the passage of a shield law, she shows a Fieldstein-level sense of bad public relations strategizing that just might indicate heartfelt belief in the matter.
A Lesson Ignored
A
shield bill came tantalizingly close passage in October 2007. With Miller, Safire, and a range of public support across both sides of the isle, the House of Representatives passed a federal shield bill (Ardia) in a landslide 398 to 21 vote. But then President Bush tossed water on the idea and threatened to veto on the grounds that:
There were many Libby supporters who called on President Bush to pardon the man, some of whom were authors of “more than 150 letters of support from military commanders and diplomats.” (Apuzzo Libby's Supporters) But in a slap to his base, three months later in July George W. Bush commuted Libby’s prison sentence (Goldstein) instead and refused to grant a pardon. Which engendered serious anger at the President. Describing the antipathy expressed toward Bush from his own base at the time, The Weekly Standard wrote:
Sentiments former Vice President Cheney seemed to agree with. Speaking immediately after the second Bush Administration term came to end, he said:Layout Test 6.1: (transition to css blockquotes and pullquotes)
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This is an Initial Rough Draft. It's been put online for layout and criticism purposes and is not intended for public consumption. There will be significant changes prior to final publication.
Copyright 2013 by James Maynard Gelinas. All Rights Reserved.
DON'T FORGET TO WRITE A NUTGRAF!!!
By James Maynard Gelinas
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Photo by Brett L
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Comments from Sen. Feinstein yesterday on who's a reporter were disgusting. 17-year old 'blogger' is as important as Wolf Blitzer. Fascist!
— MATT DRUDGE (@DRUDGE) September 13, 2013
Drudge wasn't the only one supporting Sen. Feinstein's uncivic-outreach program with nasty retorts, but it's fair to say he was the loudest.The bill, S.987: Free Flow of Information Act of 2013 (Govtrack), proposes to ostensibly offer a federal privilege for reporters in the event of grand jury or judicial subpoena. Similar to what attorneys and medical practitioners already enjoy, it's intended to limit the circumstances that government could compel testimony from reporters by subpoena. Thus, “shielding” journalists and their sources from judicial oversight in some instances.
The bill is based on a prior efforts since 2005 to enact a shield law in the wake of former New York Times reporter Judith Miller’s eighty-five day jail term. But she wasn't the first cause célèbre of a reporter's privilege. In fact, there's a long history of press organizations arguing for reporter's privilege. State protections began over a century ago. And attempts at winning a federal shield go back decades. Reporters have tried for a federal shield so many times, and for so long, it’s like that ugly guy at a bar who keeps getting shot down by the hot babe. One of these days she’ll be drunk enough and he’ll get lucky. And is congress ever in a doozy of a bender these days.
So you'd think journalists would be esctatic at the prospect of the Obama administration finally fulfilling a longstanding 2008 campaign promise to promote and sign it into law. But variants of this bill have had a tortured six year long history of failure. During that sausage-making legislative process, its been eviscerated by national security exemptions and limits on who would qualify.
To make matters worse, Obama Administration support (Lennard) came seemingly from out of nowhere just after Justice Department officials had been caught spying (C. Savage, Kaufman) on over one hundred Associate Press reporters. Which wasn't the first time. That reporters are suspicious of administration motives behind the timing of this announcement would be an understatement.
Which, combined with Senator Feinstein's amendment strictly limiting access to the privilege to commercial journalists, has created a firestorm of protest among freelancers, independent writers, and bloggers. And this isn't the first time Senator Feinstein attempted to exclude freelance journalists and independent writers from privilege under a proposed shield law. She tried the same thing in 2009 during debate over a prior revision of this bill.
“Should this privilege apply to anyone? To a seventeen-year-old who drops out of high-school, buys a website for five dollars and starts a blog?”According to Senator Feinstein, holding up the pillars of the fourth estate is serious business meant only for important professionals. Extending a press shield privilege isn’t something intended for the riff-raff general-public. When it comes to the First Amendment, some people’s speech protections are more equal than others’.
-Dianne Feinstein
In speaking before the committee, Senator Feinstein argued that only those with "bone fide credentials" - real journalists, certainly not bloggers - should be granted such privilege. The amendment would exclude those she and Durbin deemed to be non-professionals.
Her words on the matter were stark:
“ I’ve had longstanding concerns that the language in the bill that as introduced would grant a special privilege to people who really aren’t reporters at all. … The fundamental issue behind this amendment is: Should this privilege apply to anyone? To a seventeen year old who drops out of high-school, buys a website for five dollars and starts a blog? Or should it apply to journalists, to reporters, who have bone fides credentials? This bill is described as a ‘reporter shield bill’. So I believe it should be applied to real reporters. So this amendment effectively sets up a test for establishing bone fides credentials that make one a legitimate journalist. (Senate Judiciary Committee Proceedings, September 13 2013)”
Sen. Feinstein's remarks haven't made her many allies among bloggers and freelance writers. But Drudge has a business stake in the matter. As noted in a subsequent Tweet, a federal judge once ruled he didn't qualify to be a journalist. What would happen to Drudge and his media company given the proclivities of Feinstein and her cohorts in congress?
Federal judge once ruled Drudge 'is not a reporter, a journalist, or a newsgatherer.' Millions of readers a day come for cooking recipes??!
— MATT DRUDGE (@DRUDGE) September 13, 2013
Drudge isn’t alone in worrying about where this is going. A lot of people from across the political spectrum share his sentiment that government has no business legislating what is news and who are official news-gatherers. Because it seems all-together too much like tinkering with First Amendment protections in an age where the electronic press has made populist expression a crucial part of American life.
And Drudge also has company in having a judge rule that someone writing for an online publication or doing unpaid freelance work isn't a journalist. Vanessa Leggett, an upstart Texas crime reporter, spent 168 days in jail (Garcia) for contempt of court after she refused to reveal the identity of a source. And, as with the limitations proposed in Feinstein’s amendment, in her case a local judge ruled that she wasn’t a ‘real journalist’ either. Therefore, she didn't qualify for privilege under a Texas state journalist’s shield law.
And then there's the example of videographer and blogger Josh Wolf, who spent an astonishing 226 days in jail for contempt of court. (US reporter ends record jail term). He'd refused to hand over raw unaired video tapes of a protest in San Francisco during the G-8 summit. Though California has a state shield law, authorities chose to subpoena him to appear before a federal grand jury. According to Wolf, he offered to allow a judge to view the footage to determine relevance, but was refused. Instead, the court demanded immediate and uncompromising compliance to hand over everything he had shot. This, while The Washington Post’s Howard Kurtz openly wondered (Kurtz), “is he a journalist?” Yet Judith Miller, former New York Times writer who also spent 85 days in jail for contempt, didn't doubt his journalistic credentials. Calling him “...among the earliest video-bloggers,” she appealed for a federal shield law to protect him and “...the public's right to know.” (Miller, In Prison)
And then there’s the travel writer and blogger Steven Frischling, who, in the wake of the underwear bombing in 2009, obtained a TSA security directive anonymously by email and published it. In response, DHS officials drove to his house in Connecticut (Zetter) to conduct a highly contentious interview. According to Frischling:
“ They came to the door and immediately were asking, ‘Who gave you this document? Why did you publish the document?’ and ‘I don’t think you know how much trouble you’re in.’ It was very much a hardball tactic.”Bloggers beware.
Not withstanding that some blogs do publish poor and amateurish work, there is a deeper issue at stake. Because, by government defining who is and who is not a journalist such a provision has broad First Amendment implications for all citizens.
It’s as if, in the name of a free press, Sen. Feinstein would implement a class system intended to limit access and create barriers of entry to old-school publishing. A kind of Newspaper Protection Act disguised as defense of journalism and free speech, but where independent writers became relegated to the 'disorganized press' - a plebeian underclass conspicuously cut loose from engaging in the national conversation.
But, the Senator wasn't content to simply promote a contentious position through dry policy debate alone. No, the good Senator poked her rhetorical stick into a blogging-bees-nest and riled up a swarm of angry retorts that reverberated across the Internet like tsunami waves across an ocean. For her statement seemed to express severe disdain to a large community of independent writers, some of whom have contributed significantly to journalism. Yet, under her proposed amendment, these people would lack those bone fides specified to determine eligibility for coverage.
Which clearly got the amendment and proposed press shield bill considerable nasty publicity. One might call the approach: never let a boring policy matter get in the way of good mud flinging. And she can stand tall in knowing that much of the mud tossed back comes from a rabble underclass of unprofessional writers and not a commercial press corps largely supportive of her effort. So I suppose one bright side for the Senator is that, at least according to her, such consternation from bloggers isn't really bad press if it didn’t come from the press at all.
After about a month bad exposure, the committee quietly made some cosmetic changes to Feinstein's amendment and passed the deal upward for a floor vote (D. Savage) in the Senate. But so much splattered mud conceals a truly serious debate. Is it in the public interest for government to define certain classes of people and institutions who would receive differing standards of speech protections? How might this impact speech protections traditionally viewed as equally applied to all citizens?
Jailing Reporters for Their Ethics
Reporters like to think they're special. That, just as the clergy, the nobility, and the rabble are three estates holding up pillars above which society rests, they too wield an influence worthy of equal recognition. A Fourth Estate, as Edmund Burke coined it. The ideals of which would have Journalism functioning as an institutional check against public corruption. A kind of publishing police of the polity, stabbing a blow at official sleaze with a stroke of the pen rather than a slice of the sword.
But government is a powerful enemy and journalism is a populist pursuit performed individually by members of the disorganized rabble. The levers of power are heavily weighed against the press. To fulfill their promise to society as public watchdogs, reporters have traditionally argued that their sourcing methods should remain sacrosanct against judicial inquiry. That they should be 'shielded' from the overbearing authority of a power they exist to help the public oversee.
The logic goes like this: Louis Brandeis once wrote, “sunlight disinfects.” By which he meant that publishing facts about wrongdoing cleans society of the infection of corruption. But to get proof of wrongdoing it is sometimes necessary to protect the identity of sources, who rightly fear reprisal for their whistle-blowing. But government is jealous of its power. Merely embarrassing officials or their allies might be cause for retaliation. A whistle-blower could lose a needed job, or even his life if the secret disclosed were important enough. Few are willing to risk so much on principle alone. Without restraint on government in prying out the identities of reporters' sources, the availability of stories might dry up, thus diminishing the cleansing power of journalistic sunlight. And so an important public good would be lost.
Not surprisingly, government has an opposing viewpoint. Suppose law enforcement believes that a journalist's source is witness to a serious crime? In such a case, an official investigation might lead to criminal charges and ultimately convictions against major wrongdoing. Since courts, and not the press, are society’s official mediators in deterring crime, government argues there are circumstances when a reporter should be compelled to reveal the identity of an anonymous source. It's a better public good than the loss an absolute reporter's privilege might entail.
Like most aspects of society, an ethical tug of war between various stakeholders forms. In this case, the press versus government, occurring within a web of individual circumstances and power relationships that impact the balance of institutional rights and responsibilities.
“ If because of what I’m doing, that would contribute or encourage legislation on the protection of newspapermen’s sources it will all have been worthwhile.”Yet it can't be denied that there are circumstances where the careful use of an anonymous source is crucial revealing serious public wrongdoing. For example, one can’t imagine that Woodward and Bernstein could have successfully pursued the Watergate story without the use of their anonymous source, “Deep Throat.” An insider in the Nixon Administration, who claimed he risked much by even speaking anonymously, the source was many decades later revealed to have been (Von Drehle) then FBI Associate Director Mark Felt. And it brought down a presidency.
-Marie Torre
Suppose a judge with ties to the Nixon Administration had issued an order to compel Woodward and Bernstein to reveal Deep Throat’s identity in order to suppress the investigation. What if, after all recourse by appeal, that judicial order stood? Some reporters have faced just those circumstances and have chosen to refuse the court order anyway. With the consequence sometimes being criminal contempt of court citations and even jail terms.
One early example of a journalist jailed after having been cited for contempt was that of Marie Torre in 1959. Then a reporter for the New York Herald Tribune, Ms. Torre wrote that a CBS executive had made disparaging remarks about the actress Judy Garland. Ms. Garland sued CBS for defamation and deposed the columnist to compel her reveal the identity of that source, as well as the identity of the executive in question.
Ms. Torre refused. She asserted a First Amendment right to withhold speech on the grounds that it was a “threat to freedom of the press.” But though the court agreed that there were some constitutional implications to such questioning, the judge continued to require her testimony on the grounds that a “…reporter still had to testify when information goes to the ‘heart’ of the plaintiff’s claim.”
But Ms. Torre wouldn't budge and so spent ten days in jail after having been cited for criminal contempt. (Carter, Franklin and Wright. 549)
During a filmed interview prior to her short incarceration, the reporter was asked what she hoped to accomplish by her decision. She responded:
“ Well, I’ll put it this way. If because of what I’m doing, it would contribute or encourage legislation on the protection of newspapermen’s sources it will all have been worthwhile. (tvdays, unknown recording)”
tvdays.com, undated. Marie Torre speaks to reporters prior to her incarceration.
In other words, Ms. Torre hoped her sacrifice would lead to enacting a press shield law. Which would ostensibly provide some future protection to journalists from being compelled by grand jury or judicial order to divulge information obtained the in course of newsgathering. Her sacrifice might prevent a future court from compelling the release of notes, documents, or general evidence such as unpublished text or photographs. And in so doing, she hoped, the free-flow of information to the public would be served.
Supremes Sing the Press Shield Blues
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| Justice Byron White |
The first such state statute was enacted in 1898 in Maryland. Across the years more followed until now forty-nine states and the District of Columbia provide some type of press privilege or press shield law for reporters. But its a patchwork quilt of uneven protections state-by-state that has no impact on limiting subpoenas by federal action, such as with grand juries or under order by a federal judge. And, as we've seen, even a state judge might rule someone unqualified for state press shield protections by claiming the person isn't a journalist. Thus, even though state laws might offer some limited privilege, many reporters face severe hurdles in using what little protections are available. (Carter, Franklin and Wright. 549)
But this didn't daunt Marie Torre. She argued that there was a privilege implicit to the First Amendment. That, for news gathering to function, reporters should be protected from judicial inquiry, otherwise journalism would cease to function because of lost sources. And with her civil disobedience, she set a precedent repeated by reporters across the socially tumultuous 1960s.
And yet some of the most stalwart supporters of the First Amendment voiced grave concern about the constitutionality and desirability of giving such special protection to journalists. That, in so doing, serious crimes might be shielded from law enforcement in the process. In 1971, Michigan Law Professor Vince Blasi published a study on the newsman privilege titled, The Newsman’s Privilege: An Empirical Study. He interviewed forty-seven reporters and editors of major newspapers, and contacted a large number of others around the country with a questionnaire.
The report concluded by agreeing with law enforcement officials and judges that sometimes, “…information in the hands of newsmen might enable the police to prevent future crimes or to apprehend fugitive felons.” And further that: “Some journalistic endeavors border on criminal activity, such as participation in acts of demonstrative vandalism or receiving stolen documents.” (Blasi qtd. in Carter, Franklin and Wright. 550) Thus, there is a compelling law enforcement argument against privilege, for reporters are citizens under the same societal obligations as anyone else.
It also challenged the notion that subpoenaing reporters and compelling testimony has the effect of ‘drying up’ availability of sources. Instead, the author termed the negative effect a ‘poisoning of the atmosphere’ that damages ‘insightful and interpretive reporting.’ Further, he argued that ‘newsmen prefer an ad hoc qualified privilege to an inflexible qualified privilege.’ And that the most important concern for journalists is the protection of the ‘identity of anonymous sources’ rather than protection of ‘contents of confidential information.’ (Blasi qtd. in Carter, Franklin and Wright. 551)
But, in a minor blow to Blasi's academic career, just as the study went to print the Supreme Court decided to resolve the matter of a constitutionally implicit press shield. The Court combined three separate cases, each of which had different outcomes yet similar circumstances. The goal was to rationalize these discrepancies and set a consistent standard.
In Kentucky, a state that had a shield law in place, a reporter had interviewed a source about hashish production and witnessed the drug creation process first hand. He was subpoenaed, whereupon a judge ruled that the shield law only protected statements made by a source but not observations of criminal wrongdoing. Therefore, the judge compelled testimony about what the reporter had witnessed. The reporter refused and appealed.
In Massachusetts, a television reporter contacted local Black Panther Party officials, filmed them, and then gained their trust. While attending a party meeting, the reporter expected to witness a police raid that didn’t occur. No story was written. He was summoned before a grand jury about that story never published and refused to answer any questions. The trial judge demanded testimony on the grounds that no state shield law existed, and further argued hat no shield was implicit in the First Amendment. On appeal, the Massachusetts Supreme Court affirmed that lower court ruling. It was then appealed to the Supreme Court.
“ The informative function asserted by representatives of the organized press … is also performed by lecturers, political pollsters, novelists, academic researches, and dramatists.”But in New York, the opposite outcome occurred. There, a reporter had interviewed Black Panther Party activists and was subpoenaed to appear before a federal grand jury. When the reporter contested the subpoena, a lower court ruled that “in the absence of a compelling showing of need by the prosecution,” the reporter had no obligation to even appear much less answer any questions. The state rushed to appeal. (Carter, Franklin and Wright. 552)
-Justice Byron White
These discrepancies convinced the Supreme Court that clarity was necessary and combined them into a single case known as Branzburg v. Hayes. The question the justices intended to resolve was: Does a reporter's privilege in limited or complete form exist implicitly in the First Amendment? Because if so it would fundamentally alter the power relationship between law enforcement and the press. A transition toward greater speech freedoms that had been ongoing since 1930s, when prior restraint - or censorship - laws had been struck down.
Justice Byron White wrote the majority opinion in a highly contentious split 5-4 decision. In thinking through the problem his logic went like this:
“...these cases involve no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold. ... The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime. (Carter, Franklin and Wright. 552)”This is not a censorship case, a situation we have already resolved as an abridgment of free speech. The only question here is whether reporters are afforded special privilege above that of any citizen.
To get at that question, Justice White asked whether reporters have any other special privileges. For example, are they privileged in news gathering over regular citizens? He argued not:
“...the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. (Carter, Franklin and Wright. 554)”He referred to a prior case, Zemel v. Rusk. There, the Court had refused to interfere with the government's right to invalidate passports of journalists to Cuba, even though doing so would reduce the free flow of information to the public. Quoting from Zemel in Branzburg, the rationale from one was extended to the other:
“...the right to speak and publish does not carry with it the unrestrained right to gather information.” [Quoted from Zemel] ... Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded... (Carter, Franklin and Wright. 554)”Justice White's statement draws an analogy between the question of special access to news gathering versus special privilege with a source. If journalists don't have special access to sites of crime or disaster, why should they have a special privilege to withhold speech compelled by subpoena?
There's only one privilege that allows for privilege against testimony and that is in the Fifth Amendment right against self-incrimination:
“We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do. (Carter, Franklin and Wright. 555)”And so, seemingly in a blow to free speech, the Court struck down the claim of a reporter's privilege inherent in the First Amendment. Yet curiously, from an alternate perspective, in a major win for citizens, Justice White also placed all news-gathers on an equal footing. Commercial journalists didn't get a special privilege to protect sources because, by analogy, they didn't have one in news-gathering either. Yet, by saying so explicitly, the Court also affirmed that citizens had equal rights of access in news-gathering as do commercial media interests. It was a decision that empowered the citizen-journalist, which is an important point I'll return to later.
But Justice White went much further. He also also unambiguously challenged the idea of federal reporters’ shield protections in general, on the grounds that doing so would run the risk of government defining the role of journalists and thereby creating from whole cloth special classes of speech protection in the process.
That is, government would take it upon itself to decide what is news and who are journalists worthy of protection, and in so doing diminish speech rights guaranteed as equally protected. Or said another way, if journalists have special privilege and bloggers aren't news-gatherers, to paraphrase Orwell's Animal Farm, then some reporters have more equal speech protections than others.
His words are direct and to the point:
“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 mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. (Carter, Franklin and Wright. 557)”As if to rule out whether technology at play matters in speech protection, Justice White contrasted the best commercial photolithographic printing technology of his day with common copying devices then available to the general public. Forty years later, most people wouldn't recognize carbon paper or a mimeograph machine, but the analogy holds: Replace 'carbon paper' and 'mimeograph' with 'electronic publishing' and the same logic applies whether by commercial newspapers or private blogs.
The Ghost of Justice Byron White channeled the same point via Twitter:
RE: Branzburg, to new Justices I ask: Doesn't Twitter provide the same 'informative function' as carbon paper or a mimeograph? Discuss.
— Ghost Byron White (@GhostByronWhite) November 24, 2013
Justice White mentioned other non-journalistic roles where citizens inform the public, as if to make the point that journalism's contribution to the free flow of information isn’t some extraordinary function inherent to their jobs, but a civic freedom necessary to a range of professions.
“The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential sources of information, and that these sources will be silenced if he is forced to make disclosures before a grand jury. (Carter, Franklin and Wright. 557)”He seemed to be arguing that in bifurcating certain speech protections by professional class, it would diminish general speech protections under the First Amendment. Yet how can merely adding shield protections for journalists ultimately diminish free speech rights for everyone else?
One argument is that because those who did enjoy those protections would gain a speech advantage over, “lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author … [who] relies on confidential sources of information.” This advantage would give the protected class an unequal footing in the collection of sources that might ultimately reduce the “free flow of information to the public.” Because who would be willing to speak anonymously to an academic researcher on a sensitive matter if it became clear they were not protected while some subset of other 'protected journalists' were?
Like all 5-4 split decisions there was strong disagreement. Justice Stewart wrote the dissent, the crux of which was built upon two large points.
First, that the free flow of information is crucial to democratic decision-making by the public; an argument that the majority decision doesn’t challenge.
But second, and more importantly, that grand jury standards for compelling evidence gathering are weak. As testament to lax expectations upon prosecutors in grand jury proceedings, according to Tom Wolfe, former Chief Judge of the New York Court of Appeals, Sol Wachtler, once jokingly remarked that a grand jury could indict a ham sandwich given the right prosecutorial prodding.
Speaking to the potential for abuse within the grand jury system:
“…given the grand jury’s extraordinarily broad investigative powers and the weak standards of relevance and materiality that apply during such inquiries, reporters, if they have no testimonial privilege, will be called to give information about informants who have neither committed no crimes nor have information about crime. (Carter, Franklin and Wright. 565)”Justice Stewart’s remedy would have inferred a limited privilege in the First Amendment, one where to subpoena a journalist the government would have been required to show probable cause that the reporter had information relevant to a criminal proceeding otherwise unavailable to prosecutors. It would sidestep Justice White’s argument that government might have to ‘categorize those newsmen who qualified for the privilege’ by giving it out to everyone who engaged in the democratic practice of benefiting the free flow of information. Thus focusing on the act of journalism, with the work in question as a standard for privilege rather than who is and who is not a journalist.
But that high bar to subpoena power was widely opposed by law enforcement, viewing the standard as diminishing of their investigative authority, for Stewart clearly meant that such a privilege applied to any citizen engaged in journalistic endeavors. What if everyone subpoenaed claimed journalistic privilege as a reporter? Would the grand jury process be required to determine privilege status as part of everyday investigations?
Regardless, Justice Stewart lost. The Supreme Court ruled that reporter’s privilege implicit to the First Amendment did not exist; that reporters, when called upon to testify, must answer questions put forth to them; that those who didn’t respond when sworn to truth still risked contempt of court citations just as they did before. In effect, it was a decision that retained the status quo. It may not have enshrined a new First Amendment protection into the constitution, but neither did it reject a shield as unconstitutional. The potential for congress to create one by legislative action remained.
Yet while seemingly changing nothing, Justice White’s words warning about the unintended consequences to speech protections had a significant impact on the debate over a federal press shield law. Very few people, other than journalists and press organizations, seemed to like the idea of giving government the authority to pick and choose winners and losers when it came to free speech.
At first glance it seems almost obvious, of course journalists should be able to protect their sources from government prying eyes. Until the second-order repercussions of what it might mean to give reporters a special privilege over ordinary citizens becomes clear. And that doesn't even consider the possibilities for abuse. What would happen if a bad journalist exploited a shield law?
No Good, Very Bad, Terrible unJournalists
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| Stephen Glass: unJournalist Extraoirdinaire |
Stephen Glass had a meteoric rise to assistant editor at The New Republic after a series of high profile stories. Yet in a serendipitous downfall where a market competitor caught him in the act, he was caught fabricating numerous facts about a 1998 story. It it, a supposed computer hacker had been hired as a consultant by a company he had previously targeted. Republic editors looked into a series of suspiciously good quotes that appeared false. But after thorough review it was discovered that neither the hacker nor even the company itself existed. Further, Glass had taken extraordinary measures to prevent his editors from discovering the falsification. He'd even created a fake corporate website to convince them of his deception. It was intent to deceive on a grand scale.
After being caught, editors from The New Republic began an internal audit of all of Glass’ stories and wrote two mea culpa editorials about the matter. The first simply owned up to the problem (The Editors: To Our Readers ). But the second went into details about extensive fabrications discovered (To Our Readers: A Report). They reported that at least twenty-seven of his forty-one stories contained at least some fabrications. That is, a majority of his reporting contained fiction.
CNN, Approx 2003. Interview with Stephen Glass.
After this, Glass’ career as a journalist was ruined. But this sad event has impacted his life long after he stopped claiming to hold up pillars of the fourth estate. For even though he subsequently obtained a law degree from Georgetown University, and has passed the Bar in two states, he has so far failed certification by Bar Examiners on grounds of moral unfitness. That is, because he wrote a string of lies in print over fifteen years ago, to this day his career outside journalism is stalled too. Currently, a California Supreme Court case over Glass’ fitness to practice (Green) in that state is pending.
There's another reporter who gained widespread infamy for lies promulgated in the name of truth. In 2003, Jayson Blair, a New York Times reporter, was caught plagiarizing a report that had previously been published in The San Antonio Express News. A subsequent internal Times investigation found additional instances of plagiarizing in other articles, including from The Washington Post, The Plain Dealer and The New York Daily News.
But that's not all. Additionally, Blair fabricated anonymous quotes and sources for numerous prior stories. He even claimed travel to places where he had never gone to conduct interviews that had never taken place. Or sometimes had simply been handled over the phone.
After the investigation, The Times’ editors wrote a long mea culpa (Barry, et al.) editorial outlining Blair’s deceptions, which they called “…a profound betrayal of trust and a low point in the 152-year history of the newspaper.”
But if the examples of Glass’ and Blair’s unethical behavior were simply two bad apples in a journalistic barrel otherwise filled with fresh fruit, one might be willing to overlook the matter. That is, to conclude journalistic misconduct is so rare to be concerned with how it might impact a press shield law is wasted effort. Not so. For example, according to a Poynter report there were thirty-one instances of plagiarism or fabrication (Silverman) in 2012 alone. Which ignores the many that occurred each previous year since they began tallying a record in 2005. Which came about because Jayson Blair brought it to media attention. Nobody bothered to tally the issue for a yearly report before then.
It’s an immensely serious problem, one that a journalist’s privilege could help hide. But if the potential of abusing a journalist’s shield to hide overt fabrications represents a kind of nuclear-worst-case-scenario, then what about those who might abuse the privilege by protecting a source they knew – or should have known - to be promulgating false information? In other words, the problem of publishing a correctly recorded quote that had been uttered by a real source, yet later proved to have been factually incorrect. This is more of a gray area, for in this case there would be no claim of promulgating fabricated news by the journalist. Instead, a reporter’s privilege might protect journalists and their sources even when both source and journalist knew the claims that had been published were self-serving, defamatory, misleading or even an outright lie.
First Principles Ignored by the Unprincipled
In a media environment where cynical partisanship spins untruths as part of a news business model, it might seem absurdly naïve to believe that the mission of journalism is simply telling the truth. Otherwise, what would be promulgated is considered nothing more than public relations. An entirely different job than informing the public.
Therefore, reporters who engage in civil disobedience to defend journalistic ethics better make certain what they printed is genuinely truthful. That, by protecting a source, it isn't merely a self-serving act. Because telling untruths isn’t journalism and civil disobedience in defense of a lying source isn’t ethical. The same holds for those sources who use journalists for persona, partisan, or even criminal purposes.
The Society of Professional Journalists code of ethics (Farrell) provides guidelines in the use of anonymous sources.
“To protect their credibility and the credibility of their stories, reporters should use every possible avenue to confirm and attribute information before relying on unnamed sources. If the only way to publish a story that is of importance to the audience is to use anonymous sources, the reporter owes it to the readers to identify the source as clearly as possible without pointing a figure at the person who has been granted anonymity (Farrell).”Further, a reporter should question the motives of sources in requesting anonymity, because:
“When someone asks to provide information off the record, be sure the reason is not to boost her own position by undermining someone else’s, to even the score with a rival, to attack an opponent or to push a personal agenda (Farrell).”So a reporter who promulgated false claims by government officials to help propel a nation into war on false pretenses isn’t doing the field a service. A journalist who, at the prompting of government officials, anonymously revealed the classified identity of an undercover agent during ongoing operations, well that person might be considered pernicious or irresponsible but definitely not heroic.
“...there is a more specific chilling effect taking place right now. It imposes a mental “prior restraint” on the gathering of news and the expression of opinion.”Yet that’s what The New York Times' Judith Miller did. And heroic is how she and many others portrayed her in the aftermath of a felony investigation over the release that agent’s identity. An investigation that led to the conviction of a Vice President's Chief of Staff for perjury and obstruction of justice. Throughout these events, Judith Miller wrapped herself in a cloak of journalistic ethics and refused the obligation of a subpoena; an obligation every other citizen must fulfill. And she did so under the pretense that the identity of her classified tidbit-leaking source was sacrosanct.
-William Safire
Which might have been heroic had the underlying story about Ms. Miller’s incarceration been about some grand expose of Washington corruption like Watergate; if she had actually defended the republic from criminal abuse by exposing it, rather than protecting criminal conduct within the administration by shielding anonymous wrongdoing. Well then, had that been the case Ms. Miller would have been a perfect cause célèbre for journalistic ethics as depicted with cinematic flair in All The President’s Men.
Except it wasn’t. Instead, the story reads more like an ethically downward spiral of far-fetched scenes from some Ludlum-esque inspired political thriller entitled: The Plame Identity. Because Miller wound up being used by sources deep within the Bush Administration for purposes entirely unbecoming her role. And it wasn’t even her first major scandal of anonymous sources in the Bush Administration. Thus, rather than justifying the need for a press shield, her conduct arguably prompts question into its potential abuse instead.
To explain how this woman became the poster child for press privilege when she had protected a Bush Administration source under investigation for committing a felony, this story rightfully begins after she was jailed for contempt of court. Where in that cell she found herself silenced, yet not so quiet, as others took up her torch for press freedom to speak in her defense before congress.
In July 2005, Judith Miller had just been sent to jail. At the behest of a media industry perhaps somewhat concerned by her jailing but also quite eager to pursue enacting a federal media shield law for entirely self-interested reasons, New York Times commentator William Safire offered stark testimony of risks to journalists before a Senate Judiciary Committee hearing.
He argued that as a result of recent events, reporters felt a “general chill in the air” that might lead to a kind of “mental prior restraint” by journalists.
“…many of us feel a general chill in the air, and will think twice about what we say in private to each other as well as outsiders. I know that lifelong friends and sources will be forced to be guarded in what we say anywhere about everythingBut Mr. Safire wasn’t just chilled by the prospect of subpoena, he went so far as to suggest that recent events presented risk to journalism that could impose a “mental prior restraint” to journalism.
(Safire, Testimony).”
“And there is a more specific chilling effect taking place right now. It imposes a mental “prior restraint” on the gathering of news and the expression of opinion. I’ve always been able to write what I have learned and what I believe “without fear or favor”, freely taking on the high and mighty. But I cannot do that this morning. I am seething inside because I cannot tell you --- with no holds barred --- what I think of the unchecked abuse of prosecutorial discretion, and of the escalating threats of a Federal judiciary that is urgently in need of balancing guidance by elected representatives of the people. But for the first time, I have to pull my punches. … The reason is that I am afraid of retaliation against Federal prisoner 45570083, whose byline in the New York Times is Judith Miller (Safire, Testimony).”It’s curious Mr. Safire felt such a chill in the air of journalism that he would suggest ‘mental prior restraint’ had been imposed upon his work. Because the term has a very specific meaning, the use of which a casual purveyor of his words might consider hyperbole in this context. Therefore, it’s instructive to untangle the linguistic knots tied by Safire’s public relations stunt with a quick historical detour down prior restraint lane.
The term ‘prior restraint’ refers to pre-publication censorship. Long ago, when the printing press was new technology, to control the spread of information and ideas the Catholic Church and governments imposed a licensing system on the ownership and use of a printing press. For example, in 1501, Pope Alexander VI prohibited unlicensed printing. In Great Britain, the licensing act of 1662 created a licensed monopoly for printing that allowed government to limit the kind of material printed.
“Not only were seditious and heretical books and pamphlets prohibited, but no person was allowed to print any material unless it was first entered with the Stationers’ Monopoly, a government monopoly, and duly licensed by the appropriate state or clerical functionary. Further, no book was to be imported without a license; no person was permitted to sell books without a license; all printing presses had to be registered with the Stationers’ Company; the number of master printers was limited to twenty, and these were to be licensed and furnish bond; and sweeping powers to search for suspect printed matter in houses and shops, except the houses of peers, were granted. (Emerson 650)”These were onerous restrictions on expression that slowed the exchange of useful ideas. And soon it came to be realized that licensing a press monopoly wasn’t very efficient. Its application created a monstrous and unwieldy bureaucracy that engendered absurd outcomes. So by 1695, when the licensing act expired, The House of Commons in Parliament refused to extend the law again and it lapsed.
By the eighteenth century the notion of a free press – that is, a press owner’s right to publish free from government licensing – had become accepted practice throughout England and her colonies. William Blackstone, legal scholar of the era, spoke to the issue of free speech and a free press (Blackstone) in his Commentaries on the Laws of England, published in the late 1760s:
“The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity (Blackstone).”Thus, the notion of ‘prior restraint’ shifted from merely government licensing the right to own and use a printing press to the very concept of preventing publication and dissemination of ideas by legislative means. That is, ‘previous restraints upon publication.’ Or, censorship. But other laws against seditious libel and blasphemy remained, meaning that those who published material that before would have been censored, would face criminal censure after the fact.
These ideas strongly influenced the founders of the United States when crafting the First Amendment. The idea of a free press as a benefit to the public good is a core philosophical view of the US Republic. And though an immediate pullback from these principles occurred by the passing of the Alien and Sedition Acts of 1798, which jailed people for their political views. But it was roundly repudiated in the election of 1800, when Thomas Jefferson ran a strong campaign against its use. After winning, he pardoned those jailed under the act and it lapsed out of law shortly thereafter not to return for over a hundred years.
In twentieth century American law, the issue of prior restraint found expression by two opposing sets of circumstances. During time of the First World War, with support of President Woodrow Wilson, congress passed both the Espionage Act of 1917 and then the Sedition Act of 1918. The Espionage Act was originally intended to prevent popular opposition to army recruitment, while the Sedition Act prohibited a range of speech offenses, criminalizing ‘disloyal, profane, scurrilous, language’ against the nation.
These laws were quickly put to use. Under the Sedition Act, Eugene Debs, a leader of the Socialist Party, was arrested under the act after speaking against war recruitment and then convicted and sentenced to ten years in prison. The Supreme Court of the day affirmed their constitutionality, with Justice Oliver Wendell Holmes setting the ‘clear and present danger’ test used “...for determining whether speech is protected by the First Amendment,” in Schenck v. United States.
But like in 1800, when the Alien and Sedition Acts were rescinded only two years after enactment, The Sedition Act of 1918 was also repealed just after the war ended. By 1921, under a new administration, President Harding commuted Debs’ sentence also like Jefferson had done with many of those jailed in 1798-99. (Lewis 72)
And a crucial dissent in another case of that era, Abrams v. United States, by Justices Holmes and Brandeis cleared the way for severely limiting government censorship. Holmes, first noting that persecution of dissenting opinion is “perfectly logical” for those who hold “ no doubt of [their] premises” and would “sweep away all opposition.” For by allowing such speech appears as if you “doubt either your power or your premisses.” That is, allowing dissent diminishes the power of your own ideas by placing them in open competition. Yet it is in that “free trade of ideas” where “the best test of truth is the power of thought to get itself accepted” (Brandeis qtd. in Ten Cate 2-3) that truth is discovered and society moves forward. Though the dissent had little impact on those cases decided, it had a profound impact on a future decision about a decade later.
In the 1931 Supreme Court case Near v. Minnesota, the Court ruled on the matter of whether government could punish a writer and then subsequently prevent publication and dissemination of material that might embarrass elected officials’ by exposing alleged illicit activities. It concerned the Minnesota Gag Law of 1925, which outlawed as a ‘public nuisance’ the regular publication in ‘newspapers or other periodicals’ of ‘obscene, lewd and lascivious’ material that is ‘malicious, scandalous and defamatory’.
The weekly periodical in question, The Saturday Press, was a sheet published by Jay Near. He released just nine issues before being charged under the Gag Law, for the offense of alleging that Jewish gangsters controlled local bootlegging, racketeering and gambling in Minneapolis. Further, he'd said that local officials had not pursued these criminals with due diligence.
The state court found for the prosecution, stating that the publication ‘constituted a nuisance’ and “perpetually enjoined the defendants from issuing ‘Any publication whatsoever which is a malicious, scandalous, or defamatory newspaper, as defined by law.’” In a divided 5-4 opinion, the Supreme Court disagreed holding that:
“...the statutory scheme constituted a prior restraint and hence was an abridgement of freedom of the press in violation of the first amendment guarantees incorporated in the Fourteenth Amendment. Chief Justice Hughes, speaking for the majority, analyzed the operation of the statute and concluded it amounted to ‘an effective censorship (Emerson 653).’”But if Near v. Minnesota made clear that government could not impose a prior restraint on scandalous claims, the issue of preventing publication of materials related to national security came to the court some forty years later.
In 1971, President Nixon was three years into a policy of ending the Vietnam War by mounting a heavy bombing campaign. Youth opposition had flared into demonstrations of popular unrest across the nation. During that time, Daniel Ellsberg, a young and idealistic military analyst at the RAND Corporation, had been secretly copying classified documents about war policy during the prior Kennedy and Johnson administrations and squirreling them out the door. He then convinced reporters at The New York Times to publish some of the content.
The collection of studies is known as The Pentagon Papers, and it sparked a fiery dispute between government and the press. The material detailed Vietnam War policies that were embarrassing to the prior Kennedy and Johnson administrations but did not detail specifics of then current ongoing operations in war planning and execution.
When The Times published its first story in June, within one day the Attorney General had contacted the paper by telegram to warn them that continued “publication was prohibited by the Espionage Act under which spies are prosecuted.” (Carter, Franklin and Wright 348)
Attorneys at The Times were unimpressed, determining that their release did not represent a “clear and present danger,” in Justice Holmes’ words, to successfully conducting the wartime policies of the United States. Further, they believed it was in the public interest to publish it. Responding by telegram, they wrote that “... [we] must respectfully decline your request ... believing it is in the best interest of the people of this country to be informed of the material.” (Carter, Franklin and Wright 348)
A gutsy move given that the papers were classified Top Secret and it was a violation of criminal law:
“ …for any unauthorized possessor of a document ‘relating to the national defense’ to willfully communicate or cause to be communicated that document to any person not entitled to receive it (Carter, Franklin and Wright 355).”The Nixon the Nixon Administration filed suit against The Times seeking to enjoin further publication. But the paper had already published some of the material. The government couldn't put that genie back in the bottle. The case quickly went before a federal judge, Murray Gurfein, who issued a temporary restraining order to prevent continued publication during court proceedings. But questioning of government witnesses were unable to specify any items within the materials that might “be dangerous if published.”
Based on this the judge refused to grant a full injunction, thus allowing The Times to continue publication. In his opinion, Gurfein wrote:
“The security of our nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know (qtd. in Lewis 240)”This wasn't the only loss suffered by the Nixon Administration. A similar action against The Washington Post, which had also begun printing Pentagon Papers material, also failed at the district court level. But the Nixon administration appealed to the Supreme Court anyway.
Acting in a remarkably short time, only two weeks after The Times had first begun publishing the Papers, the Court issued a 6-3 decision against further censorship. The opinion begins:
“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. The Government thus carries a heavy burden of showing justification for the imposition of such a restraint. ...the government has not met that burden. ”And it was over. The government had thoroughly and completely lost in its attempt to limit publication of classified material that might embarrass officials yet not impede ongoing wartime operations. And soon thereafter The Pentagon Papers were quickly published in newspapers and book form all across the country.
The well known constitutional scholar and popular author Anthony Lewis explained the Court's reasoning in Make No Law:
“First, Congress had not passed any statute giving the courts specific authority to stop publication of this kind of material. Second, in order to overcome the First Amendment presumption against prior restraints the government had to show that disclosure, as Justice Stewart put it, ‘surely result in direct, immediate, and irreparable damage to our Nation or its people,’ and the government had not done so (Lewis 240-241).”So that’s what ‘prior restraint’ means. It’s just not censorship of a general nature, but government suppression in the prevention of dissemination of news or ideas authorities deem unacceptable.
Keep that in mind as we reconsider William Safire's testimony before the Senate Judiciary Committee. A place where he complained under oath about a chilly air blowing through the hills and valleys of journalism, saying it had become so cool that it evoked within him shivers of ‘mental prior restraint.’ A trembling self-censorship so frightening that even he, an Atlas of the Press at that exceptional institution The New York Times, where reporters who write ‘all the news that's fit to print’ proudly hold up the pillars of our national fourth estate, the columns of which he feared might topple and crumble under the blow of Poseidon Fitzgerald’s brisk mint-fresh puff.
Could the jailing of Judith Miller have been truly so crucial to the free flow of information? Was her incarceration for contempt of court as serious as preventing Jay Near from publishing scandalous claims about Jewish gangsters running Minneapolis, or classified documents about defunct war policy enacted by prior presidential administrations?
Anonymous Sources Say the Darndest Things
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| Judith Miller. Photo: AP/Kevin Wolf |
When Miller joined The Times in the late 1970s, she was one of only a few women accepted into the fold at a national paper of record in a field dominated by men. She fought her way to the top, sustaining that position through the 1980s as The Times' Cairo bureau chief. By the mid-1990s she'd written a book on Islam, God has Ninety-Nine Names. And in the process, built relationships with some of the most important policy-makers of the Middle-East and US government. There is no doubt this success was built by hard work.
And in her defense, it’s fair to say that Miller was by no means the only US reporter or press outlet to forgo skepticism of Bush Administration claims in the buildup to the Second Gulf War. But unfortunately, she was also center stage in performing a lead role cheerleading that policy. Journalists aren't supposed to join-in and become part of the stories on which they report. Yet she promulgated numerous false claims by anonymous Bush Administration officials of an alleged Iraqi WMD program. These statements became instrumental in building public support for a war policy that became a slow-motion tragedy for America still unwinding to this day.
The Bush war policy was formed, according to former White House terrorism expert (Clarke) Richard Clarke, “While the Pentagon was still burning…” after the attacks of 9/11. Yet even in the immediate aftermath of 9/11, there was no factual connection between the terrorist attacks and Iraq. Nor, according to weapons inspectors, any hard evidence of a WMD program either. As Clarke wrote, “despite being told repeatedly that Iraq was not involved in 9/11, some, like Cheney, could not abandon the idea.”
“You leak a story to the New York Times,’ he says, ‘and the New York Times prints it, and then you go on the Sunday shows quoting the New York Times and corroborating your own information. You've got to hand it to them. That takes, as we say here in New York, chutzpah.’”The administration needed some way to promote their agenda, even if concrete evidence didn’t support a casus belli for legitimate war. As links proving Iraq was behind 9/11 fell apart, the potential that Iraq might procure WMDs, particularly that the nation might field nuclear weapons, became an official rationale for war. Even when facts belied the policy. For example, a month before the US invasion began in March 2003, U.N. inspectors led by Hans Blix had completed more than 400 inspections (Hans) in eleven weeks yet had found no solid evidence of ongoing WMD development. Yet still the Bush administration invaded.
-Bob Simon
According to public statements, the invasion policy was based on preventing an unknown potential for the development of weapons of mass destruction that hadn't been found. As Bush's National Security Advisor Dr. Condoleezza Rice explained on national television, “...there will always be some uncertainty about how quickly he can acquire nuclear weapons. But we don't want the smoking gun to be a mushroom cloud.” (Blitzer)
According to this policy, factual truth of the matter would be determined after the war had been resolved in the United States' favor. Such concerns were, as writer Ron Suskind anonymously quoted a Bush White House aide (Suskind), “Part of the reality based community,” whom the aide defined as people who, “believe that solutions emerge from your judicious study of discernible reality.”
Continuing, the source went on to say:
“That's not the way the world really works anymore. We're an empire now, and when we act, we create our own reality. And while you're studying that reality—judiciously, as you will—we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors…and you, all of you, will be left to just study what we do (Suskind).”This would have been a pretty funny thing to say was not the source widely believed to have been Bush’s Sr. Political Advisor, Karl Rove. Who turned out to be a player in different scandal with Miller, but we’ll get to that later.
Thus, considering what administration officials said both on and off the record, it probably isn’t surprising that some anonymously sourced claims by Bush Administration officials might not have been uttered with much interest in veracity. But skepticism of motives by a source is just the kind of concern journalists are ethically bound to consider. Because that essential free flow of information, a stream of news the fourth estate supposedly exists to help a functioning democratic process, can’t possibly exist when facts are absent from published reports.
But such concerns didn’t stop Judith Miller in her zealous quest for a scoop. In September 2002 she co-wrote a piece with Michael Gordon claiming that Iraqi President Saddam Hussein had attempted to obtain special aluminum tubes (Gordon, Miller) crucial to enriching uranium as a step in the process of making an atomic bomb. Citing only “Bush Administration officials” as a source, the story said that these tubes met special technical specifications for nuclear weapons production. Unnamed Iraqi defectors were cited to saying that acquiring nuclear weapons was a top priority for Iraq. And another unnamed defector claimed chemical weapons development was a focus as well.
The story didn’t cite a single named source from the administration to back these assertions. But Vice President Dick Cheney, appearing on NBC’s Meet The Press the very morning that story appeared in the paper, cited the Miller/Gordon story as evidence of Iraqi attempts at acquiring nuclear weapons. That was when Condoleezza Rice uttered the mushroom cloud comment on CNN to promote the war policy. A month later, President Bush repeated that ‘mushroom cloud’ phrase the president Bush signed into law congressional authority to go to war with Iraq.
And it wasn't as if there were no specialists in the field debating those claims. Some highly credentialed weapons inspectors voiced doubt that those aluminum tubes were meant to enrich uranium. Shortly after that Times article was published, David Albright, physicist and weapons inspector at the Institute for Science and International Security, wrote a report challenging the administration’s claims:
“By themselves, these attempted procurements are not evidence that Iraq is in possession of or close to possessing nuclear weapons. They also do not provide evidence that Iraq has an operating centrifuge plant or when such a plant could be operational (Albright).”Michael Massing interviewed Albright in Now They Tell Us. Regarding Ms. Miller’s problematic reporting in that hey-day era before the war, Albright said he had spoken with her right after publication of the aluminum tubes story. But after informing her of his skepticism that they had been bought for nuclear centrifuges, she was unmoved.
“ I thought for sure she’d quote me or some people in the government who didn’t agree. It just wasn’t there. … [The Times] made a decision to ice out the critics and insult them on top of it. People were bitter about that article – it says the best scientists are with [the administration]. (Massing, "Now" 2)”So Miller and The Times wouldn’t budge on a claim where administration heavyweights had quoted their work on national television, regardless of accuracy.
Bob Simon of CBS News, spoke to the circular nature of administration officials leaking information to Miller and then pointing to the resulting story as self-serving evidence in support of their own war policy:
“‘You leak a story to the New York Times,’ he says, ‘and the New York Times prints it, and then you go on the Sunday shows quoting the New York Times and corroborating your own information. You've got to hand it to them. That takes, as we say here in New York, chutzpah (Layton).’”In November, about two months after the aluminum tubes story went to press, Miller wrote another problematic story claiming that Iraq had, “…ordered large quantities of a drug that can be used to counter the effects of nerve gas.” (Miller) It also citied unnamed Bush Administration officials whose claims were never verified. The story ultimately spiraled down into a black hole of news oblivion never to be followed up upon.
Then, a month later in December, The Times published another Miller story about a purported CIA investigation of smallpox deliveries to Iraq by a recently deceased Soviet scientist. It cited unnamed administration officials who spoke about revelations by an informant, “…whose identity has not been disclosed.” (Miller Germ Weapons) That is, an US government source gave Judy Miller a disclosure from someone he wouldn’t name, for her to print unattributed. Or, publishing hearsay from a second hand anonymous source. And The Times’ editors determined that it was news they considered ‘fit to print.’
In this May 2003 Slate overview (Shafer) on misrepresentations published by the New York Times under Miller’s byline, the report concluded that:
“The most important question to unravel about Judith Miller's reporting is this: Has she grown too close to her sources to be trusted to get it right or to recant her findings when it's proved that she got it wrong? Because the Times sets the news agenda for the press and the nation, Miller's reporting had a great impact on the national debate over the wisdom of the Iraq invasion. If she was reliably wrong about Iraq's WMD, she might have played a major role in encouraging the United States to attack a nation that posed it little threat (Schaffer).”Thus, a mere two months after the start of the Iraq war in March, it was already becoming clear that there were serious problems with Miller’s sourcing in her reports. And, further, that because of The New York Times’ credibility as a national paper of record, that could have had dire implications for whether the nation had gone to war on false grounds.
In early 2003 Schaffer had to give Judith Miller the benefit of the doubt. Yet even that early on something smelled fishy. And as later became apparent, the stink really was rot and not fancy New York perfume. For not a single one of her claims in those stories were ever verified.
In the midst of yet another scandal swirling around their star reporter, by May 2004 The Times editors realized they had a problem and spoke to the older issue while ignoring the more recent. Reading like that passive voice refrain, ‘mistakes have been made,’ not a single reference to Judith Miller or her work is found in their subdued mea non-culpa about “poor coverage” in the lead-up to the war:
Which seems like pretty milquetoast self-criticism. In fact, according to the Iraq Survey Group Final Report, after calling off the search for Weapons of Mass Destruction in 2005, they determined that there was no link between Saddam Hussein and Al-Qaeda (Smith) prior to the invasion of Iraq nor were any WMDs found. In 2010, two years after Bush left office with an insurgency in Iraq still actively attempting to repel U.S. forces, weapons inspector Hans Blix declared that he thought the war had been illegal (Iraq Inquiry) from the start.“ …we have found a number of instances of coverage that was not as rigorous as it should have been. In some cases, information that was controversial then, and seems questionable now, was insufficiently qualified or allowed to stand unchallenged. Looking back, we wish we had been more aggressive in re-examining the claims as new evidence emerged — or failed to emerge (The Times and Iraq).”
But concerns for prior accuracy didn’t stop Judith Miller from continuing to contribute to the national discourse on poor journalistic ethics. For right about the time Schaffer was publishing his overview of Miller’s problematic reporting in Slate, she was interviewing a Sr. Administration official in Vice President Cheney’s office. A source whose statements ultimately led her nose for fake news straight to an independent counsel’s subpoena. And when she refused to testify to reveal the source’s identity, she wound up in detention. And there was where her friend and New York Times Colleague William Safire pointed his finger as he pounded the bully pulpit in her name, she having become a cause célèbre in absentia for the enactment of a national journalist’s shield law in an ironic capstone atop the pillars of the fourth estate.
The Plame Identity
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| Photograph by Jonas Karlsson |
It's a nice ideal, too bad it isn't always true. Two people undeservedly burned by that spotlight were once a DC power-couple. One, a diplomat and the other a covert C.I.A weapons proliferation specialist. That is, until one of them went to Niger for the Bush Administration on a nuclear fact finding mission and found the wrong facts. Officials didn't want those facts in deciding a matter of grave national concern, and they ignored them. So the diplomat took an absurdly principled stand and shone a spotlight on actual facts in a newspaper of record. The same newspaper, ironically, which had also printed Judith Miller's unfacts. And then that cleansing spotlight was turned around by Bush Administration officials, who pointed it bright and hot at that diplomat's spouse. The C.I.A agent. And all hell broke loose.
It was Robert Novak, of The Washington Post, who first published the officer’s identity. That occurred in October 2003, three months after the diplomat had published those facts and six months after the war had begun. But Novak wasn’t the only reporter who knew the officer’s identity. A number of other high profile journalists, including Walter Pincus, also of The Washington Post, Tim Russert of NBC News, Matthew Cooper of Time Magazine, and Judith Miller of The New York Times, had all been leaked the name. Some aggressively pursued the story while others backed off, probably because revealing a covert C.I.A agent's identity is a bad idea. But it was Novak who spilled the beans.
The agent's name is Valerie Plame. Before the leak, her job had been as an undercover C.I.A. operative investigating weapons of mass destruction proliferation in the Middle East. And yet the Bush Administration had invaded Iraq claiming that the country was engaged in an illicit nuclear, biological, and chemical weapons development program. Why would Bush Administration officials leak the name of a covert proliferation specialist while conducting a war ostensibly over weapons of mass destruction development?
About a year and a half before, in February 2002, Plame’s husband, Joe Wilson, had gone to Niger at the behest of the C.I.A. per her recommendation to investigate the possibility that the African nation’s mining industry had been exporting nuclear materials to Iraq. Such an event would have been US casus belli for military action, since were it true it would have represented a direct UN Security Council violation against Iraqi weapons of mass destruction procurement that was a holdover from the prior 1991 conflict.
A foreign services ambassador and former US diplomat in Iraq, Wilson was intimately familiar with the situation and history. But while there he concluded that the supposed transfer was impossible and hadn’t occurred. So he dutifully reported back his findings and moved on. But it was problematic for the Bush Administration. For example, Bush had planned to use findings of a Niger transfer to Iraq as part of an October 2002 speech he was to give in Cincinnati. It was a keystone to arguing the case for war yet had to be removed. In fact, the claim seemed so crucial that by January 2003 it returned in modified form during Bush's State of the Union Address. The President made a reference to that nonexistent nuclear transfer anyway, even though it had previously been removed and was known problematic. But truthful or not, it made the case and in March the invasion of Iraq began.
Yet Joe Wilson knew it was bogus. He responded with a scathing public editorial The New York Times outlining his findings in Niger, or lack thereof. And publically challenged the Bush Administration’s case for a then ongoing Iraq War, embarrassing the administration with the spotlight of truth.
“The question now is how that answer was or was not used by our political leadership. If my information was deemed inaccurate, I understand (though I would be very interested to know why). If, however, the information was ignored because it did not fit certain preconceptions about Iraq, then a legitimate argument can be made that we went to war under false pretenses (Wilson).”That month, a classified memo identifying Plame, and her relationship as wife to Wilson, became available to Sr. White House staff. Sometime after that, Novak, Cooper and Miller obtained the identity through several White House sources. And in October 2003, Robert Novak revealed Plame’s identity (Novak) in a column he wrote on Wilson’s Niger investigation, citing two anonymous sources within the White House.
The CIA didn’t like having the identity of a covert officer revealed by anyone, not even by sources deep within a Bush Administration they presumably worked for. There were messy problems like risk to the agent's family; risk to everyone the agent knew and worked with; risk to sources that supplied crucial information. Not to mention the immediate destruction of an expensive cover operation that had been meticulously put together and maintained.
So, in response to Novak's story, the CIA formally requested by letter (CIA Letter) that the Justice Department investigate the source of that leak. A Justice Department run by the Executive, which per the newspaper account had been sourced by officials at the very top. It was an overt political move, the kind of institutional response which demanded a bloody skin from some scapegoat of the President's. And it wasn't as if the Executive could refuse.
Officials at the Justice Department almost immediately announced they had opened an investigation (Hucheson, McCaffrey), and rumors were published speculating about a special prosecutor. U.S. attorney, Patrick Fitzgerald was assigned, whereupon he opened an investigation and quickly subpoenaed a number of journalists to determine the source of that leak.
In a January 2004 Vanity Fair published a profile of Plame and her husband:
“The information had been leaked to him by “two senior [Bush] administration officials,” who were trying to discredit a report her husband had done for the C.I.A.—the implication being that Wilson got the job only because his wife got it for him. Evidently the “two senior administration officials” did not realize it is a federal crime to knowingly reveal the identity of an undercover C.I.A. agent. As a result, Plame is now the most famous female spy in America—“Jane Bond,” as her husband has referred to her (Ward).”At the same time, Robert Novak's sense of journalistic ethics led him in the direction of cooperation. He later explained why he thought singing on the stand (Novak) didn’t impugn his ethics by arguing that Fizgerald had already determined the identities of the sources independently. That is, refusing to testify wouldn’t have mattered. Which seems curious given Miller and Cooper steadfastly upheld a different set of ethical standards. Yet Nokav wasn’t alone. Both The Washington Post’s Walter Pincus and NBC News’ Tim Russert also cooperated.
Robert Novak, speaking at a 2007 Heritage Foundation
event explains why he revealed Valerie Plame's name.
During a drawn out grand jury investigation and resulting criminal prosecution process, it was learned that Novak’s primary source had been Deputy Secretary of State Richard Armitage. Karl Rove, Bush’s Sr. Political Advisor and elections specialist, had confirmed Armitage’s statements about Plame to Novak as a secondary source. But it wasn't just Armitage who had been handing the name out to reporters. Karl Rove had been the primary source for Matthew Cooper. And there was someone in the Vice President’s office as well.
Why were so many Sr. Bush Administration officials peddling this story around to reporters? One would think that if it had been an unvetted leak the story should have come from a single source. An issue Fitzgerald wanted to untangle. The special prosecutor already knew that Rove and Armitage had been among the leakers through testimony by Robert Novak, Walter Pincus, and Tim Russert. But he didn't have testimony by Cooper or Miller. And he had an inking that another one of the leakers was the Vice President’s Chief of Staff, I. Lewis (Scooter) Libby. And he thought proof of that might take him straight to the Vice President.
Both Rove and Libby had provided voluntary written waivers for their confidentiality. Robert Novak, Tim Russert, and Walter Pincus all said they had chosen to testify because they didn’t believe that given the waiver they had an obligation to protect their source’s identity. Yet Matthew Cooper and Judith Miller had both received the same waivers as well. But by some strange legal twist, their attorneyFloyd Abrams, had recommended the two reporters fight (Carlson) their subpoenas. Which left Libby as an unconfirmed source of the leak.
Fitzgerald was pretty sure Libby had given the name out too. So he directly questioned Libby on the stand about the timeline of the leak, asking pointedly if he had spoken to Miller prior to Novak’s column. But during questioning Libby claimed otherwise (Libby, grand jury testimony). And further, his testimony indicated, though did not prove, that revealing Plame’s identity had been part of an overall strategy to approach The Times’ David Sanger and Washington Post’s Walter Pincus for some reason that he didn’t remember.
With Miller steadfastly refusing to testify, by October 2004 she was cited for contempt (Leonnig). Across several months she appealed the decision. In April 2005 the DC Court of Appeals refused to rehear (Buell) her case, and by June the U.S. Supreme Court affirmed that decision when they too refused to hear (Henry) the case. And it was over. By early July 2005, Ms. Miller donned an orange jumpsuit and scooted off to jail for Scooter.
That was when William Safire spoke at a Senate Judiciary Committee hearing in support of a press shield law, where he angrily remarked that a ‘chill was in the air’ from Miller’s incarceration; one that evoked seething words a ‘metal prior restraint’ prevented him from writing. But as she sat in that detention cell, it seemed she was not so cause célèbre for her cohort Matthew Cooper. He had initially refused to testify, but he quickly relented (Roh) just before being cited for contempt as well. And thus her example inspired something different in Cooper from that of Safire.
But things change. While incarcerated Miller and Cooper dumped their lawyer, Floyd Abrams, and obtained new counsel. The new attorney discovered Libby’s waiver written long before which had allowed her to testify all along. The same waiver given to Novak, Pincus, and Russert. And Cooper as well. So, ironically, it turned out she’d spent all that time in jail defending a journalistic principle that hadn’t been in contention to begin with. Something Novak, Pincus, and Russert had already figured out.
“In the end, though, Miller spent months in an orange jumpsuit for nothing. When she got a new lawyer, Robert Bennett, he found out she'd had a voluntary waiver from Libby -- in writing -- all along. She just hadn't wanted to accept it. (Carlson).”Miller was apparently not convinced by her new counselor's counsel. So Libby, ever the chivalrous and charming knight, wrote her another letter anyway, once again formally releasing Miller (Borger) from a confidentiality oath he had already waived.
“I was surprised at Mr. Bennett's request, because my counsel had reassured your well over a year ago that I had voluntarily waived the confidentiality of discussions, if any, we may have had related to the Wilson-Plame matter. (Libby, Letter).”And then Libby included a strange personal note to the reporter, which raised eyebrows among all involved:
“You went to jail in the summer. It is fall now. You will have stories to cover - Iraqi elections and suicide bombers, biological threats and the Iranian nuclear program. Out West, where you vacation, the aspens will already be turning. They turn in clusters, because their roots connect them. Come back to work - and life. (Libby, Letter).”‘They turn in clusters, because their roots connect them.’ Extremely weird.
Anyway, like the reticence of a blushing bride finally breaking down far too late in the evening, when it came time to testify Miller’s dated notes showed that Libby had – indeed – spoken of the matter before Novak’s column had been published. And though Fitzgerald couldn’t prove conspiracy going up to Vice President Cheney, he at least had Libby’s skin for lying under oath.
Miller was released in late September 2005 shortly after giving testimony. Though in gaining freedom, she didn’t return to a heroine’s welcome when she arrived at The Times’ newsroom. In fact, according to this 2005 report in Vanity Fair, Miller was so wary about how her colleagues might react when she arrived that she’d brought a friend as escort. Describing the scene, Mnookin wrote:
“The more than 100 reporters and editors who had gathered in the center of the room—traditionally the site of Pulitzer Prize celebrations—greeted Miller with tepid applause (Mnookin).”Then, in mid-October, just two weeks after Miller had been released from detention, she went before the Senate Judiciary Committee (Seelye, Journalists Testify) to pound the bully pulpit for a federal press shield law. It was a sort of bookend counterpart to the testimony given by William Safire just a few months before. Right about the same time when Fitzgerald filed official indictments against Libby (US Justice Department Indictment), charging him with five counts of perjury and obstruction of justice.
“ …having Judy Miller be the face of [a press shield law] is like having Amy Winehouse doing PSAs for the Partnership for a Drug Free America.”If Times staff had given Miller tepid applause privately upon her arrival, in print they gave her a downright scornful unwelcome. Only a few days before, as if the paper meant purge itself of an altogether unsavory and foul meal of tainted newsprint, The Times had published a feature article on the Miller imbroglio detailing a series of embarrassing events they wished were long since past but yet still remained strolling through their newsroom uncomfortably well within sight. A tome where Jill Abramson, then Managing Editor, when asked, ‘…what she regretted about The Times’ handling of the matter,’ replied, “The entire thing.” (Van Natta, et al.)
-Arianna Huffington
Ouch.
A few weeks after that bit of Maoist self-criticism, the paper engaged in a final internal cleansing when Miller was quietly shoved out the front door into that New York chilly-late-fall November air, to build a successful new career as freelance pariah. Whereupon those in the Times’ newsroom were finally able to look with a sigh of relief upon her figure diminishing in that rearview mirror, dust billowing out from behind as everyone collectively drank a stiff shot and floored the gas pedal.
But a dutiful Miller went ungently into that sour night, grasping that torch of press freedom from Safire and plastering herself upon Fox News television wall-screens like some pin-up doll for unworthy journalistic privilege. There she pimped the sad story Safire had spoken of to the Judiciary Committee, those pundit boobs-on-the-tube nodding dutifully at her oh-so-serious points. A tale whereby through some horrible prosecutorial overreach, this nice, pretty little yuppie girl heroine had been consigned into some dank dungeon cell by an evil government force called a judge. Of course, conveniently ignoring the damage she’d done the nation or a Supreme Court that had been entirely unsympathetic to her supposed plight. But it makes for good TV.
Phrasing the matter in her usual flamboyant manner, Arianna Huffington wrote, “…having Judy Miller be the face of such laws is like having Amy Winehouse doing PSAs for the Partnership for a Drug Free America.” (Huffington)
Double Ouch!
Fox News, Jul 24 2013. Judith Miller promotes a press shield law
But if Judith Miller wasn’t listening then she still doesn’t hear today. Continuing to pound that haggard pulpit in promoting the passage of a shield law, she shows a Fieldstein-level sense of bad public relations strategizing that just might indicate heartfelt belief in the matter.
A Lesson Ignored
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shield bill came tantalizingly close passage in October 2007. With Miller, Safire, and a range of public support across both sides of the isle, the House of Representatives passed a federal shield bill (Ardia) in a landslide 398 to 21 vote. But then President Bush tossed water on the idea and threatened to veto on the grounds that:
“Ironically, a shield law could have protected White House staffers who spoke to reporters had it been in place when the Justice Department investigated who blew the cover of former CIA analyst Valerie Plame (Sullivan).”Bush actually went against his base and overwhelming popular support to oppose the bill on ethical grounds. And that hadn't been the first time. About six months earlier in March, Vice President Cheney’s former Chief of Staff I. Lewis Libby had been convicted of four counts (Lewis) of the five original counts. He was sentenced to thirty months in federal prison, supervised release, a fine, and community service.
There were many Libby supporters who called on President Bush to pardon the man, some of whom were authors of “more than 150 letters of support from military commanders and diplomats.” (Apuzzo Libby's Supporters) But in a slap to his base, three months later in July George W. Bush commuted Libby’s prison sentence (Goldstein) instead and refused to grant a pardon. Which engendered serious anger at the President. Describing the antipathy expressed toward Bush from his own base at the time, The Weekly Standard wrote:
“Bush’s decision not to pardon Libby has angered many of the president’s strongest defenders. One Libby sympathizer, a longtime defender of Bush, told friends she was “disgusted” by the president. Another described Bush as “dishonorable” and a third suggested that refusing to pardon Libby was akin to leaving a soldier on the battlefield. (Hayes).”
“[Libby] was the victim of a serious miscarriage of justice, and I strongly believe that he deserved a presidential pardon. Obviously, I disagree with President Bush’s decision. (Hayes).”
CNN, Approx. Late Jan 2009. VP Cheney breaks with Bush over refusal to pardon Libby
Thereby showing the president had a backbone and arguably got at least two things right during his administration. But though Bush killed the shield bill late in his second term the issue didn’t die. By April 2008, with a presidential race ongoing, both candidates McCain and Obama (Jackson) promised full support for a press shield law.
So when Obama’s election was secured, a hopeful congress began drafting a new shield bill based on the version that had passed the House in 2007. It would have provided a wide range of protections from grand jury investigators and judges who might deign to pry into journalists’ sources. It too passed the House in April 2009 with text that would have limited ‘covered persons’ as one who:
“ ....regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person (Bayard).”Which shows that back then the House wanted to definite who was and was not a journalist. However, as Michael Lindenberger noted at the time, in contrast the Senate version of the bill at that time was 'more generous' in its coverage by offering privilege to any person “…engaged in journalism.” (Lindenberger)
Which must have caused some concern among opponents of ubiquitous and widespread speech protections. Because in late September 2009, President Obama abruptly reversed course and revoked support. After meetings with his national security team, he proposed a series of changes (Savage) to the Senate version to weaken its provisions. And so a full shield law became one in a long string of unmet campaign promises from the 2008 campaign.
An angry Kevin Smith, president of the Society of Professional Journalists, published a press release expressing “outrage” over the President’s actions. It said, in part:
“Not long ago, President Obama was a key supporter of this bill, but after one meeting with his national security team he appears to have been scared into making this poor decision (Smith).”It would appear even back then Senator Dianne Feinstein was unmoved by the concerns of the Society of Professional Journalists. Ms. Feinstein, that woman who recently provoked the ire of so many with her inflammatory comments about seventeen-year-old high-school-dropout straw-boy bloggers who don’t deserve press shield protections, garnered much less attention back in December 2009 with a similar amendment during that prior attempt at passing a press shield.
According to the Nieman Journalism Lab at Harvard University, the earlier Feinstein proposal:
“…would limit protection from testifying to professional journalists working for “a newspaper, book, magazine, or other periodical.” Not included: student journalists, or even freelancers working without a contract (Seward).”Untangling the reasons behind this alienating of inalienable rights, the debate over limiting who is and who is not a journalist had been brought about because of Wikileaks. That organization had recently released a string of embarrassing classified revelations, and was threatening to commit additional acts of officially unsanctioned real journalism.
Stories such as the release of Iraq War logs that showed over one hundred thousand violent deaths (Leigh) had been recorded between 2004 and 2009; the publication in 2009 of a 2007 video of an US military apache helicopter killing AP reporters and civilians (McCullagh) in Baghdad; and the release in late 2010 of 250,000 sensitive diplomatic cables (Wikileaks Embassy Cables) sent from December 1966 through to February 2010.
Like The Pentagon Papers, these stories didn't impact ongoing wartime operations but the Obama Administration found the revelations highly embarrassing. And there were more. Many more embarrassing revelations by an organization that US government decidedly did not want to protect by enacting a shield law it could use.
So, in defending home turf, some reporters’ organizations changed course and supported Feinstein in her goal. For example, the Reporters Committee for Freedom of the Press argued in the Summer 2010 issue of The News Media & the Law against including Wikileaks in any federal shield bill, while simultaneously supporting enacting such a law.
“The six full-time volunteers and about 1,000 volunteer ‘encryption experts’ who operate Wikileaks will not be confused with journalists. … It also shouldn’t be a surprise that the folks at WikiLeaks are giving Washingtonians significant heartburn. Among the most concerned are those who have spent time over the last six years advocating for a federal shield law (Dalglish).”According to the Reporters Committee, those crafting the legislation in Washington shouldn’t concern themselves with the question of whether irresponsible Internet activists were real journalists. Instead, please do lickity split enact that shield law. In contrast to the prior 'outrage expressed by Kevin Smith at The Society for Professional Journalists, by October 2010 the organization politely urged adoption of a media shield law regardless of recent onerous changes:
“Currently, this bill is being stalled over the definition of a journalist. We feel that more than enough time has been given to this issue, and holding it only ensures its defeat. Many journalism groups, including the Society of Professional Journalists, have willingly made concessions on needed national security issues. And concessions have been made repeatedly on defining a journalist. This bill has the backing of the White House, the U.S. Attorney General, the House and we know the majority of the Senate. It is ready to go to the Senate floor (Smith).”Still, regardless of those pleas, that bill never made it out committee. Even with amendments limiting who might be considered a journalist and broad national security exemptions added to prevent organizations such as Wikileaks being considered as privileged under the law.
And yet concerns about what so-called ‘real journalists’ at such stalwart institutions as The New York Times might do with a shield were few and far between. But that doesn’t mean there weren’t alarm bells ringing over abuses with anonymous sourcing.
For example, in August 2010, just two months before Kevin Smith urged adopting a shield law, The Times’ public editor Clark Hoyt was at a farewell dinner saying goodbye to his career at that paper. He’d written a string of uncomfortable editorials excoriating the paper’s abuse of anonymous sourcing and poor evidentiary standards. In fact, in April, just months before he’d left, Hoyt had written a column where he argued that ‘misuse of anonymous sources’ at the Times was ‘squandering public trust’ of its readership.
“Despite written ground rules [link defunct] to the contrary and promises by top editors to do better, The Times continues to use anonymous sources for information available elsewhere on the record. It allows unnamed people to provide quotes of marginal news value and to remain hidden with little real explanation of their motives, their reliability, or the reasons why they must be anonymous (Hoyt).”One example offered was that of Edward Gramlich, former Federal Reserve governor. Times claimed had posthumously obtained note he’d written that exonerated former Fed Chairman, Alan Greenspan, “…essentially clearing him of charged that he did not heed Gramlich’s warnings of a subprime mortgage meltdown.” Provenance of the note wasn’t specified, with the Times only stating that the letter had been “…provided to the paper.” (Hoyt)
“To me, the article looked like The Times had allowed itself to be used in an attempt to rehabilitate Greenspan’s reputation through the convenient device of a letter whose writer was not available for questioning.” (Hoyt)Though he added in passing that the reporter in question had challenged his impression and stated there was an additional source, which didn’t make it to print for space reasons. A point The Times’ readers would never have known had Hoyt not questioned the issue.
Regardless, for Hoyt an impression that a history of abuse with anonymous sourcing by the paper had led to a ‘squandering of public trust’. A problem the public editor clearly recognized, as those were his words. Which suggests the question: did such practices change after he left?
A memo written by Phil Corbett, the standards editor, was circulated soon after Hoyt’s office chair cooled. In ironic turnabout, Gawker received a copy (New York Times Warns) via an anonymous internal source within the paper and printed it.
Inside were boilerplate standards common to the field, including: be clear why a source is anonymous; provide enough information for a reader to judge the source’s credibility; at least one editor must be informed of an anonymous source’s identity; and, let’s not overuse anonymous sourcing.
Ignored within the memo is the Society for Professional Journalists’ code of ethics (SPJ Code of Ethics) that argues a reporter should ‘identify sources whenever feasible.’ Further, when publishing anonymous claims a reporter should ‘always question a source’s motives’ in requesting anonymity and to ‘clarify any conditions attached to any promise made in exchange for information.’
Some on The Times’ staff might have benefited from that reminder of the SPJ’s code of ethics. Because examples of poor anonymous sourcing by at least one New York Times reporter once again garnered significant criticism, showing that the paper continued ‘squandering the public’s trust’ well after Hoyt left the paper.
A Freezing Blizzard Blows Very Chilly Air
Following Miller’s trailblazing path of putting faith in a stenographer’s notebook, The New York Times’ Scott Shane garnered similar criticism when he uncritically quoted anonymous Obama Administration sources in several stories about the U.S. drone warfare program. Harvard University’s Nieman Foundation for Journalism looked into a matter (Hanrahan) where between 2011 and 2012, Shane had published statements by anonymous CIA officials that later proved false, misleading, and arguably defamatory.
Not surprisingly the story was about Pakistani civilian casualties due to U.S. drone strikes, a matter of high contention within the Obama Administration. Obama Administration officials had been arguing that that civilian deaths were “exceedingly rare.”
Yet the London based Bureau of Investigative Journalism (BIJ) reported on a large number of fatal civilian casualties, directly contradicting administration claims. Their statistics showed that in 2011 there had been 2,440 to 3,113 drone deaths since 2004, with between 479 to 821 civilian deaths among them. In one such flagrant instance, Shahzad Akbar, a Pakistani human rights attorney affiliated with the BIJ, filed two Pakistani lawsuits demanding criminal investigations into a March 11 killings of tribal elders and fifty others in Waziristan. That story got considerable press attention.
In the midst of this public debate between government officials and investigative journalists, Scott Shane wrote a story about the BIJ and Akbar that was published by The Times in August 2011. In it, Shane published an anonymous source from the C.I.A. who asserted that, “American officials accuse Mr. Akbar of working to discredit the drone program at the behest of the Directorate for Inter-Services Intelligence, or ISI, the Pakistani spy service.” (Shane C.I.A. Is Disputed)
In other words, that Pakistani human rights attorney is a spy working for the enemy. But at least Shane tempered that bit of potential slander with journalistic balance from other anonymous sources. He followed the statement up with, “Mr. Akbar and others who know him strongly deny the accusation.” (Shane C.I.A. Is Disputed) And another attorney who had worked with Akbar challenged the statement as “not credible at all.”
So which was it? Is Akbar a Pakistani Intelligence Agent out spreading disinformation or did that anonymous C.I.A source slander the human rights attorney? Shane didn't bother to find out.
In another problematic story addressed by the Nieman Foundation, a February 2012 story by Shane focused on U.S. targeting by drone strike of mourners at funerals. After citing findings in a BIJ report on the matter, Nieman Watchdog noted that:
“ …the article then allowed a “senior American counterterrorism official, speaking on the condition of anonymity” to not just question the report’s findings, but to state: “One must wonder why an effort that has so carefully gone after terrorists who plot to kill civilians has been subjected to so much misinformation. Let’s be under no illusions -- there are a number of elements who would like nothing more than to malign these efforts and help al Qaeda succeed (Hanrahan).”About which Nieman Watchdog noted, “That latter direct quote essentially allowed the anonymous source to declare critics of the drone program as traitors and dupes.” (Hanrahan)
Twice Shane had allowed anonymous U.S. officials to tarnish the reputations of its critics without determining the veracity of those official claims. So Nieman asked Shane why he had printed anonymously sourced statements that were unverifiable, and potentially even defamatory, without bothering to checking them. Describing his response:
“…Shane defended the use of the anonymous quotes in the two articles, saying that he and his editors agreed that the quotes were needed to give “some voice from the other side” -- that is, the government -- in articles reporting allegations of civilian deaths. Until the drone-strike program is made overt and government officials can talk more freely about it, Shane said, “journalists often have a choice of quoting anonymous officials or writing stories about accusations of bad strikes and innocent deaths and including no response at all. I feel it's important to include some voice from the other side, and my editors have agreed (Hanrahan).”
“But at the very same time that they invoke broad secrecy claims to shield their conduct from outside scrutiny, it is Obama officials themselves who have continuously and quite selectively leaked information about these same programs to the US media.”That is, in order to find so-called ‘journalistic balance,’ Shane and editors at The Times willingly printed anonymously sourced claims by government officials that were at best unverifiable and at worst downright defamatory. Their rationale was that even if verification of those claims was impossible, the source should be implicitly trusted by reason of being a representative of institutional authority of the U.S. government.
-Glenn Greenwald
No one has or will likely ever deposed Shane and asked him on the record to reveal that source. Yet, one assumes that were that to happen he would refuse up to the point of accepting a contempt citation and jail term. As his journalistic ethics demand. Yet, as President Bush noted when he threatened veto of a press shield back in 2007, if such a law were passed that privilege would likely have exempted him from the risk. Thus, protecting him and his anonymous sources at the C.I.A. even as they promulgated potentially defamatory claims.
Glenn Greenwald, spoke to reporters’ overreliance of anonymous Obama Administration sources (Greenwald, How) in promulgating classified information that presented the President and his policies in a positive manner. Rather like ‘all the governmental public relations that’s fit to print.’ And yet, in contrast to those stories the administration liked, when leakers and whistleblowers reveal classified information perceived as embarrassing, the same folks aggressively pursue criminal charges. As Greenwald put it:
“ ...at the very same time that they invoke broad secrecy claims to shield their conduct from outside scrutiny, it is Obama officials themselves who have continuously and quite selectively leaked information about these same programs to the US media.”Greenwald referred to two examples printed by The New York Times that relied extensively on official anonymous sources to disseminate classified information that presented President Obama in a largely positive way. The first was about a secret kill list, (Becker and Shane) a story that also had Scott Shane on the byline. But unlike those prior stories of his where administration critics were at least interviewed, the ‘kill list’ story was a puff piece that focused on the difficult ethical quandary faced by President Obama in implementing an extrajudicial kill list. One where those executed had their fates sealed by committee and executive order rather than due process of law, and ultimate deaths rained down by machines from high above.
In deliberating over who would be added to this Presidential ‘kill list,’ an anonymous informant discussed a process of ‘secret nominations’ handled by video conferences run by the Pentagon. Which wasn’t the limit to use of anonymous administration sources in the story. They’re scattered throughout like salt and pepper on morning eggs.
What of innocent civilians caught in the collateral storm without a hellfire umbrella at the ready? Recognizing the difficulty of civilian casualties, the story interviewed a ‘top’ White House adviser. Speaking to a drone strike that had killed several innocent Pakistanis, the anonymous official said, “The President was very sharp on the thing, and said, ‘I want to know how this happened.’” Which led to the CIA ‘downsizing’ munitions so as to make more ‘pinpoint strikes.’
Columbia Journalism Review spoke to the unbalanced nature of the story, calling it ‘Watchdog meets Lapdog:’
“ …I think the Times’s work is only half done. After chronicling the White House’s work on targeted killings, it should mount a similarly intensive investigation of the impact of those killings on the ground (Massing, Watchdog).”In an ironic twist, Massing then referred those Times authors to the London based, Bureau for Investigative Journalism as a good place to have requested contrasting quotes for balance about civilian casualties on the ground in Pakistan. The very organization that employed human rights attorney Shahzad Akbar, the one Harvard’s Nieman Foundation noted that the same reporter, Scott Shane, had recently smeared by proxy with anonymous CIA sources. You can’t make this shit up.
In different New York Times story, one written by David Sanger, anonymous sources were used to release classified details about a cyberattack virus (Sanger, Obama) used against Iran’s nuclear facilities. Dubbed ‘Stuxnet’, the program infiltrated computers inside some of Iran’s nuclear facilities wrecking havoc with its uranium enrichment centrifuges.
The story details Obama’s decision-making process in deploying the cyber-weapon and its eventual success in derailing a nuclear enrichment program. The story interviewed, “current and former American, European, and Israeli officials involved with the program, as well as a range of outside experts.” But all required anonymity because the program remained “highly classified.”
It was yet another example of easy anonymity handed out to administration officials for puff piece journalism. Like previous examples, Sanger’s work seemingly ignored SPJ and The Times’ standards on ‘questioning motives of sources in requesting anonymity,’ handing out quotes without attribution like candy at a pediatrician’s office. Would Hoyt have called it yet more squandering of the public trust?
Greenwald expressed outright exasperation at one of the most prestigious institutional newspapers in the nation seemingly having not learned any lesson from the travails of its own former reporter, Judith Miller:
“But despite those real differences with the Judy Miller travesty, the basic template is the same. These reporters rely overwhelmingly on government sources. Their reporting is shaped almost exclusively by the claims of underlings who are loyal to the president. The journalists have no means of verifying the assertions they are passing on as fact. And worst of all, they grant anonymity to Obama's aides who are doing little more than doing the president's bidding and promoting his political interests.In contrast to the lapdogs of the press, Greenwald pointed to The Times’ James Risen, who had, “…produced scoops that are embarrassing to, rather than glorifying of, the US government.” Such as when in December 2005, The Times’ James Risen wrote an early story about the Bush Administration’s warrantless wiretapping program (Lichtblau and Risen), where electronic spying had been conducted without FISA court authorization.
It is pure “access journalism”: these reporters are given scoops in exchange for their wholly unjustified promise to allow government officials to propagandize the citizenry without accountability (that is, from behind the protective shield of anonymity). By necessity, their journalistic storytelling is shaped by the perspective of these official sources (Greenwald, How).”
Risen soon found himself in serious trouble over classified information revealed in his 2006 book State of War. Where, within one chapter of which, according to The Times, a source had revealed information about a botched CIA operation. During that failed operation, operatives had attempted to, “…disrupt Iran’s nuclear program by sending a former Russian scientist to give blueprints for a nuclear triggering device with a hidden design flaw.” (Sanger, Obama Order) But it didn't work.
Neither the Bush nor Obama Administrations much liked having the details of a botched operation given the disinfecting cleansing of sunlight. So, in 2008, Risen was subpoenaed to reveal the identity of his source. Unfortunately for administration attorneys, the reporter steadfastly refused to speak. But that didn't stop the government from determining the identity by other means.
Three years later the government was somehow able to file charges under the Espionage Act of 1917 against Jeffery Alexander Sterling. “The government was apparently ultimately able to make its case against Sterling without any assistance from the reporter.” (Isikoff, Ex-CIA)
But how had the government uncovered this tidbit? It soon became clear just how far the Justice Department would go to uncover a reporter’ source when suitably motivated. Because even though Sterling had maintained his innocence, and Risen refused to testify, the government had gotten the goods electronically:
“As reported a month later, during the investigation, ‘…prosecutors [had] obtained Risen’s telephone, credit and bank records. They also obtained credit reports on Risen conducted by three credit agencies — Equifax, TransUnion and Experian — as well as records of his airline travel.’(Isikoff, DOJ gets)”In other words, in order to suss out the identity of a source Risen had sworn by his journalistic ethics to protect, the government used an electronic surveillance system that the very same reporter had revealed to exist in a prior 2005 story he wrote. Though Orwellian and downright disturbing, that’s some ironic payback there.
As Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press didn’t like the idea. In Isikoff’s report she said, “I find this very disturbing. This tells us the Obama Administration will do almost anything to figure out who is leaking government information.”
In June 2012, Matt Apuzzo highlighted this imbalanced situation of how government uses reporters to anonymously disclose vetted classified information for puff pieces while simultaneously clubbing those and their sources who publish classified leaks that prove embarrassing. He sardonically Tweeted:
Sanger writes on successful Iranian operation, gets wide access. Risen writes on botched Iranian operation, gets subpoenaed. #transparency
— Matt Apuzzo (@mattapuzzo) June 1, 2012
If Apuzzo thought the circumstance of having Risen’s telephone records spied on to ferret out Sterling’s name using the same system the reporter had revealed to exist only years before is ironic, imagine what he thought when that same wiretapping system was pointed to X-Ray the innards of his employer and the work of his colleagues. Which is exactly happened. And when it was discovered, the fallout from that scandal is what led the Obama Administration to propose a rebirth that old shield bill, as if throwing a bone of contentious accord at concerned reporters.
A Shield for the Vetted, A Club for Everyone Else
At around the time of Apuzzo’s tweet, he had just won the 2011 Pulitzer Prize (AP wins) for just the kind of story investigative reporters are meant to write. Which was sure to have made him many enemies within the centers of power in New York and Washington. In a series of stories, he and his colleagues detailed abuses within the New York Police Department in their surveillance of minority and Muslim neighborhoods since 9/11. Which mirrored the situation Risen faced when he hadn’t made many friends among Bush Administration officials by revealing the warrantless wiretapping program.
So perhaps it shouldn’t surprise anyone that Apuzzo would also wind up in the government’s electronic surveillance bullseye the next time they wanted to covertly determine the identity of a source. Because in May 2013, just the same kind of scandal erupted when it was discovered that federal investigators had secretly obtained two months worth of phone records (Sherman) at the Associated Press. The vast scope of which had collected information on one hundred reporters and editors while monitoring twenty telephone lines in order to ferret out a single source from two of reporters who had written a single story.
Associated Press, May 13 2003 AP reports on government electronic surveillance of their own offices.
But it was an embarrassing divergence between statements offered by the White House and Department of Homeland Security that appears to have engendered a Department of Justice response by the Obama Administration. At first both DHS and White House spokesman Jay Carney had denied any knowledge of a plot. And when the AP held back on the story at the White House’s request, indicating that they knew the AP knew that what they had been denying was bogus, a spokesperson for DHS continued to deny what the reporters and the White House knew to be true.
It was just the kind of mess that made the administration look incompetent and uncoordinated. In short order the Justice Department began an investigation of Apuzzo and Goldman to determine the identity of their source, which ultimately split open the Associated Press like a cadaver on a dissection table.
And though officials denied that the President knew anything (France-Presse) about electronic surveillance used against the AP in their investigation, this is the same administration that has filed charges under the Espionage Act of 1917 against more than twice the number of people as all presidents (Wagstaff) combined since the law was enacted.
--- SECOND DRAFT EDIT PASS ENDS HERE ---
Foreign Policy Magazine took the trouble to list leaks seemingly approved by the administration (Friedman), in so far as they were not prosecuted, and contrasted them against those where charged had been filed. Kill List, Stuxnet, Bin Laden Raid, and the Awlaki Memo: No. Those were the good leaks. But Wikileaks, Trailblazer, Operation Merlin, and terrorist interrogation (euphemism: torture): Yes. Oh yes, those were the absolutely terrible, horrible, rotten, no good, very, very bad leaks - ones worthy of decades in jail, or at least the threat thereof, for having disseminated. The differences between each set being a curious matter worth examining.
Currently, eight persons have been charged with violating the Espionage Act under President Obama’s administration (Bloomfield), Thomas Drake, Stephen Jin-Woo Kim, Shami K. Leibowitz, John Kiriakou, Bradley Manning, Jeffrey Sterling, and Edward Snowden. That’s in contrast to three prior to Obama, Daniel Ellsberg under Nixon, Samuel Loring Morison under Reagan, and Lawrence A. Franklin under George W. Bush.
Glenn Greenwald, ever one to point at administration hypocrisy when it comes to civil and free speech rights, had this to say after espionage charges were filed against Edward Snowden (Greenwald, On the Espionage), the principle source and leaker in a mass NSA spying story he had broken:
“ For a politician who tried to convince Americans to elect him based on repeated pledges of unprecedented transparency and specific vows to protect "noble" and "patriotic" whistleblowers, is this unparalleled assault on those who enable investigative journalism remotely defensible? Recall that the New Yorker's Jane Mayer said recently that this oppressive climate created by the Obama presidency has brought investigative journalism to a "standstill", while James Goodale, the General Counsel for the New York Times during its battles with the Nixon administration, wrote last month in that paper that "President Obama will surely pass President Richard Nixon as the worst president ever on issues of national security and press freedom." Read what Mayer and Goodale wrote and ask yourself: is the Obama Administration's threat to the news-gathering process not a serious crisis at this point? [qtd. Links in Original]”
Which is why it’s so curious that the Obama Administration would almost immediately respond to the AP spying scandal by promoting the Schumer negotiated Free Flow of Information Act (Savage. Criticized) of 2009 that had died in Committee about a year and a half earlier. Why do that? Was it a distraction? Or, after all these years of hemming and hawing about throwing a bone to journalists while also beating them about with subpoenas and the use of electronic surveillance to discover and charge their sources anyway, had the Obama Administration reversed course and begun whistling a new tune?
A Shield for the Vetted, A Club for Everyone Else
That question, what goal the Obama Administration might have in promoting a shield law, given they’d just been caught with the proverbial hand in a telephone switch in order to spy on the very people the law claims to protect, is exactly the question reporters and concerned citizens should be asking. What’s going on here?
The Electronic Frontier Foundation performed an analysis of Feinstein’s amendment and had this to say:
“ Specifically, the amendment requires that a journalist meet one of the following definitions:The report concluded:
1. working as a “salaried employee, independent contractor, or agent of an entity that disseminates news or information;”
2. either (a) meeting the prior definition “for any continuous three-month period within the two years prior to the relevant date” or (b) having “substantially contributed, as an author, editor, photographer, or producer, to a significant number of articles, stories, programs, or publications by an entity . . . within two years prior to the relevant date;” or
3. working as a student journalist “participating in a journalistic publication at an institution of higher education (Weiland).””
“ Sen.Feinstein’s amendment is riddled with vague language, failing to define key terms including “agent,” entity,” “substantially contributed,” and “regularly”—on which the definition of who’s a journalist turns. Non-traditional journalists are at a disadvantage when the interpretative waters are muddy. Why? Because such vagueness invites interpretations that exclude those who are on the margins of status quo journalism, and who are often in a more vulnerable position and unable to hire legal counsel to sort through the law’s ambiguities. As a result, independent bloggers and citizen journalists would likely be interpreted out of Feinstein’s definition of journalist (Weiland).”
There were some minor changes that altered the Durbin/Feinstein amendment prior to the bill being voted out of Committee. The Electronic Frontier Foundation offered up a summary of these changes as well, arguing that the shield bill was a little better in its new incarnation but still by no means good.
For example:
“ …the bill defines ‘covered journalist’ instead of ‘journalist.’ … The bill now does not purport to have the federal government define who is a ‘journalist’ or ‘journalism’ for all purposes, but only the subset of journalists covered by the shield (Green).”Which means that the law would successfully exclude as ‘covered journalists’ a majority of US citizens who also perform the ‘informative function’ of the press. Citizens such as, “lecturers, political pollsters, novelists, academic researchers and dramatists,” as Justice White noted in Branzburg. But we can rest easy lawmakers won’t define ‘journalist’ in the process of stripping from the populace this new privilege assigned to a limited class of special speakers.
There is a new, ‘Judicial Discretion’ provision, whereby a judge would have the prerogative to extend privilege to someone not a ‘covered journalist’ if because of:
“ …the specific facts contained in the record, the judge determines such protections would be in the interest of justice and necessary to protect lawful and legitimate news-gathering activities under the specific circumstances of the case (Green).”Next, the update drops the requirement that a journalist be a ‘salaried employee’ of a newspaper or commercial publishing house, which would have excluded independent like freelancers and bloggers. A stipulation that Feinstein added in her prior amendment to the 2009 version of the bill, presumably because to her no creative content producer is ‘professional’ unless they’re neo-feudal subjects bound to a corporate entity like serfs to a vassal.
“ ‘Oh, yeah, you caught us spying on reporters -- here's a bill that we want that wouldn't have stopped that, but if you're really concerned about a pretend level of privacy for journalists and their sources, it's something, sorta.’”And finally, there is a provision to extend privilege to those who have had a longstanding history of journalism in print extending back twenty years or, “…for any continuous three-month period over the last five years.” (Electronic Frontier Foundation)
-Techdirt editorial
All of this seems like positive changes to a downright awful bill, until you get to the Bad News part of their analysis, where they point out that a provision to exclude Wikileaks and ‘Wikileaks type’ organizations remains, however that might be accomplished.
Which means that all they need do is term a work as having some improper association with a ‘Wikileaks type’ organization to deny privilege to those who somehow meet their already limited definition of a ‘covered journalist.’ Which calls into question how much judicial discretion would be applied should the question ever come before a judge.
The question of a right to gather for members of the press is crucial. As Branzburg made clear, the court decided that while journalists may not have a privilege inherent to the First Amendment in refusing to testify, “…the majority acknowledged that the Court was not suggesting ‘that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated.’” (Carter, Franklin and Wright 56) But at least a freedom eviscerated equally to that of citizens.
So the issue of ‘discriminatory access’ evokes the question: If prior restraint is said to occur by limiting the publication and dissemination process, then can it also be said to happen during the news collection and gathering process as well? If so, then a press shield law that specifies a class of ‘protected journalists’ could be argued to represent an overt prior restraint by impeding equal protection of the First Amendment under the Fourteenth Amendment.
Regardless, The Nation Magazine expressed severe reservations about the bill right after it was voted out of committee.
“ As written, the Senate bill would not protect journalists if the government could make the case that the information sought would assist in mitigating “acts that are reasonably likely to cause significant and articulable harm to national security,” a phrase so full of ambiguities as to be essentially useless.As Britt Hume, showing an innate sense for an appropriate reporter’s cynicism, Tweeted right after Obama asked Schumer to reintroduce his bill:
“Basically all leak cases that involve journalists’ emails or themselves getting subpoenaed to appear in front of a judge involve national security cases, so this exception basically just tilts the playing field to the government. The burden that the journalist has to overcome is virtually impossible,” said Trevor Timm, the executive director of the Freedom of the Press Foundation. “The way the bill is written gives all deference to prosecutors’ claims on national security (Carpenter).””
Press shield law POTUS prev. backed full of nat. security exceptions; would not have stopped either AP or @JamesRosenFNC subpoenas/warrants.
— Brit Hume (@brithume) May 26, 2013
And techdirt, putting it in their usual snarky way, added:“ But, really, using [the AP spying scandal story] as a nail to hang their support for a shield law seems pretty ridiculous. ‘Oh, yeah, you caught us spying on reporters -- here's a bill that we want that wouldn't have stopped that, but if you're really concerned about a pretend level of privacy for journalists and their sources, it's something, sorta (Masnick).’”Which suggest that the bullseye on her target are those who disseminate classified leaks that embarrass government. For example, back in Nov 2010, Senator Feinstein published a statement on the Wikileaks revelations (Feinstein's official Senate website), where she called the leaks, “…a serious impediment to frank discussions among U.S. government officials and … our foreign partners. Whoever released this information should be punished severely.” And then she noted that in one case the Obama Administration had brought charges against a leaker who had, “…provided classified documents to a blogger.”
Though it seems Senator Feinstein really doesn’t like bloggers too. Regardless, similar to her statements about Wikileaks, she also offered a harsh assessment of former NSA employee and intelligence contractor Edward Snowden’s revelations. Speaking about the matter to reporters, Feinstein said, “I don’t look at this as being a whisleblower. I think it’s an act of treason. [Snowden] violated the oath, he violated the law. It’s treason.” (Savage D.)
So when Senator Feinstein spoke those odious comments at the most recent Senate Judiciary Committee hearing, those where she argued strenuously against allowing the possibility a seventeen year old straw-blogger might gain a press privilege, one really only meant for her definition of ‘professional journalists,’ it turned out she really had excluding someone else in mind. It wasn’t seventeen-year-olds hell-bent on citing anonymous sources for their Lady Gaga is Awesome blogs. Instead, as revealed in this LA Times story, it was Edward Snowden who had really tugged at her saggy nylons, “…if Edward Snowden were to sit down and write this stuff,” Feinstein said, “he would have a privilege. I'm not going to go there.” (Savage D.)
Yet unlike those snarky retorts of actual reporters who might face subpoenas despite whether this bill passes, the editorial staffs of major newspapers and media associations very much like it. The editorial staffs of The Washington Post, The Chicago Tribune, The Minneapolis Star Tribune, and the Newspaper Association of America, a broad media coalition, have all publicly endorsed the current proposed legislation.
I wonder why that is.
Irresponsible Speculative Hyperbole
So, back to that question: What do the large media institutions and the Obama Administration all want by promoting this legislation?
It’s clearly not a way to stem prosecutorial and judicial abuse of subpoenas in investigating journalists’ sources. The Executive has already made clear they will even use legally questionable electronic surveillance in a broad and sweeping ways to probe into a publisher’s business practices and the daily work of its reporters if deemed necessary. Which is significantly more than simply saying, tell us what we want to know or we’ll throw you in jail for contempt.
And as has been made clear by the EFF and countless others, there are so many national security exemptions in the bill that even if the administration were constitutionally constrained in its use of wiretapping and other electronic surveillance, there are more than enough provisions to legally compel a reporter to name a source that had leaked classified information the administration didn’t want revealed.
So, it’s fair to say that solving some nebulous argument made by journalists of prosecutorial overreach is clearly not the goal of this media shield law. And yet, as envisioned, the law would supposedly shield some minority of ‘privileged journalists’ from being subpoenaed to divulge anonymous sources. What’s the game?
I think there are multiple aspects of strategy involved, some which should be seen as patronage to the media industry, some as resolution to short-term problems the Obama Administration faces this term, and finally some that represent steps toward long-term goals to increase Executive authority across administrations and partisan differences.
To begin, we should ask about its effects on journalism.
Why is Judith Miller still out in public pounding the bully pulpit for a federal press shield law? Whom does she represent? Judith Miller epitomizes a class of journalist, she who relied not on investigative acumen to break stories but on inside connections with important people. As Greenwald notes, there’s a class of insider lapdog journalists connected to administration sources by leashes of special access. They uncritically promulgate administration perspective. As such, they are useful to the powerful and thus worth defending.
For the publication and news industry, the privilege limits liability from potential defamation damages. Journalists who can’t be deposed reduce the need for attorneys to defend the paper’s cause. But so too does it open up the opportunity for politically motivated smear campaigns by promulgating defamatory claims through anonymous sources.
It’s a long time past since Marie Torres went to jail defending the identity of her source in the hope it might prod lawmakers into passing a press shield. The source, a CBS executive who had said some minor criticism of Judy Garland; the actress, a woman long past her prime and by then already regarded as deeply troubled; the journalist, a female entertainment reporter writing material of no significance to national policy.
Yet it is national policy-makers who would pass this press shield with a new cause célèbre: Judith Miller. A woman who went to jail defending the identity of a source who revealed classified information that destroyed a CIA career and at least appeared to smack of retaliatory action. Even though he had released her of that obligation. A press shield that, according to a Bush Administration veto rationale, would have protected Miller though President Bush thought she didn’t deserve it. A press shield that presumably would protect reporters who defend anonymous sources disseminating smears against administration critics, such as against Scott Shane repeating the claims affiliation with Pakistani intelligence made by anonymous CIA officials against Shahzad Akbar of the Bureau for Investigative Journalism.
You can just see where this will lead. Because if you thought the tabloid nature of partisan back-and-forth already present in political journalism is bad, just imagine a future when anonymous speakers could make any outrageous false and defamatory claim they wished without legal risk to professional ‘protected journalists’.
Thus, for a certain class of ‘protected journalists,’ and their employers, the Obama Administration offers a shield to protect the dissemination of selective truths and outright lies. Something real journalists definitely should not do, but that the shield law would create a perverse incentive in practice for ‘protected journalists’ to engage in.
But next, we should ask what would its effects be on limiting authority of special prosecutors in investigating executive wrongdoing?
Let’s return to what Glenn Greenwald said about those leaks in The New York Times that had benefitted the president during the 2012 election. Leaks to reporters containing classified information about a ‘Secret Kill List’, use of the Stuxnet virus to combat Iranian nuclear aims, and the Bin Laden raid that ended in the terrorist’s death.
In each, critics claimed that the administration had spoon fed classified information to reporters in furtherance of political goals. One of those who made that claim was Senator John McCain, former presidential candidate and opponent to President Obama in 2008.
Speaking to those news stories, while noting their public relations advantage to the President, the senator charged that in making those anonymous revelations during an election year, the administration had intentionally leaked classified information to enhance President Obama’s image. “What Price was paid by the administration to proliferate such a presidential persona highly valued in an election year?” McCain said. “The only conceivable motive for such damaging and compromising leaks of classified information is that it makes the president look good.” (Chaggaris)
White House Spokesperson Jay Carney responded that such a suggestion that the administration would leak classified information for political gain was “grossly irresponsible.” To which Mr. McCain retorted, “No, what is grossly irresponsible is U.S. officials divulging some of the most highly classified programs involving the most important national security priorities facing our nation today.”
McCain pointed to the hypocrisy of administration officials engaging in the same conduct as what they were currently prosecuting others for having done. The senator then stated that he and the Armed Services Committee chairman, Carl Levin (D-Mich) agreed to hold hearings to appoint a special counsel to investigate those leaks.
And back and forth went the partisan recriminations, repeated in the stenographic press without consideration of the underlying seriousness of McCain’s charge. Republicans called for a special prosecutor to investigate (Horwitz) those leaks.
It seems as though Republicans have been calling for special prosecutors to investigate one scandal or another ever since Obama was elected. As this article by Morgan Whitaker makes clear, Republicans have attempted to foist a series of faux-scandals (Whitaker) while making the case for special prosecutors with the hopeful outcome of impeachment. The best known of which are: Solyndra, a solar company that won federal funding and went bankrupt; Fast and Furious, a federal law enforcement program begun under the Bush Administration to release and track guns into the hands of Mexican drug cartels that went wrong; The birth certificate fiasco, claims that Obama is not eligible to hold office that don’t hold up to any measure of scrutiny.
More recently there have been two scandals that did catch significant attention. In May 2012, an attack against a diplomatic compound in Benghazi (Fisher), Libya led to the deaths of four Americans, including U.S. Ambassador J. Christopher Stephens. Many Republicans have claimed serious wrongdoing by the administration as a result. For example, Senator Pat Roberts (R-Kan) called to appoint a special prosecutor (Schorr) to investigate allegations of a White House coverup in the Benghazi scandal. Representative Steve Stockman called for a special prosecutor as well, while holding up a book titled: “Impeachable Offenses: The Case for Removing Barack Obama from Office.” (STOCKMAN SEEKS) Which is in ironic contrast to CBS News’ Laura Logan, who had to go on air and offer a mea culpa apology (Shepard) for publishing untrue claims of administration culpability in Benghazi that had been made by an anonymous source.
If the White House leaks and Benghazi scandal wasn’t enough, some Republicans governors also called for a special prosecutor to investigate allegations that the IRS had selectively scrutinized conservative groups (Ingram and Spetalnick) applying for tax exempt status. When it came to be known that liberal groups affiliated with the Occupy movement had also been targeted (Condon), it seemed to take the wind out of conservative attempts to impeach the president.
But it can’t be ignored that special prosecutors have vexed administrations going back to Watergate. Then, after special prosecutor Archibald Cox subpoenaed President Nixon for the Watergate investigation, the president attempted to force Attorney General Elliot Richardson to fire the investigator. The Attorney General refused and resigned in protest. Then Deputy Attorney General William Ruckelshaus resigned in protest after Nixon asked again. Ultimately, it was Solicitor General Robert Bork who pulled the trigger on that Saturday Night special Massacre, effecting a termination with undue prejudice against Cox that backfired in the chamber and left Nixon holding the smoking gun.
Independent Counsel Lawrence Walsh investigated Ronald Reagan’s Iran-Contra scandal, leading to indictments against National Security Advisor John Poindexter, National Security Council member Oliver North and Secretary of Defense Caspar Weinberger. Though these were either reversed on appeal or dismissed.
And who can forget Kenneth Starr, Independent Counsel supposedly tasked with investigating a minor land deal but which somehow was extended in byzantine manner to scrutinize the suicide of Vince Foster, a Deputy White House Counsel and ‘friend to Hillary’; the firing of travel office employees whom the Republican party seemingly worked as union counsel for, ostensibly because the party believed such jobs were protected for life; and the improper access of FBI documents, which got Craig Livingstone, then director of the White House’s Office of Personnel Security very properly fired for improperly requesting hundreds of seemingly political background checks without permission. But when Starr meandered to investigating the President’s tip, which he learned via Tripp had invaded past an intern’s lips, then the prosecutor finally won those chips on that roulette wheel of impeachment - too bad the Senate disagreed.
So it should come as no surprise that Republicans salivate at the prospect of assigning a special prosecutor to investigate just about anything Obama has done. Or not done. Or thought he might one day do. If it isn’t clear that these guys are out to get him, I don’t know what could possibly convince a fair minded individual. Given this history, any administration would view a special prosecutor as a direct existential threat. Because who the hell knows what might happen if the next bulldog were to get the right lapdog on the stand.
The prosecutor could dig into tape recordings of conversations made in the Oval Office; illicit weapons sales with an enemy of the state that funneled funds to a rebel movement Congress had refused to support; sexual dalliances with an intern in the side-closet of love; or even the outing of a CIA officer whose husband had the unreasonable public expectation of truth-telling when forming official casus belli to invade a nation-state.
But unlike so many made-for-Fox-News-television scandals promulgated to a gullible public still hopeful for a little partisan-payback-parade over Nixon, the issue with Obama Administration officials having revealed classified materials seems a scandal with legs. If Scott Shane and other reporters are to be believed, those officials really did say those things. And if those in the Bush Administration who had leaked Valarie Plame’s identity committed a felony by revealing classified information, didn’t those Obama Administration officials do the same?
And though a few administration apologists claim some classified leaks are more illegal than others (Friedersdorf) to justify claims of false equivalence, it reads more like promoting selective prosecution than equal application of the law. The Plame investigation seems a precedent Obama ought to worry about. It’s too similar to ignore. Because the last time a special prosecutor dug into an executive classified leaks scandal it nearly took down a sitting Vice President.
When Walter Pincus was subpoenaed in the Valerie Plame case, he came away from that experience with an entirely different perspective of that as Press Shield Law proponent Judith Miller.
“ …when I was subpoenaed in the probe of the leak of the identity of CIA covert officer Valerie Plame Wilson, it became clear that reporters could be labeled co-conspirators, aiders and abettors or accessories in criminal leak cases (Pincus, Fine Print).”Which, as a graduate of Gerogetown Law School, it struck Mr. Pincus as perfectly natural in a legal system that attempts to impose justice for wrong doing, rather than shield only some leakers of classified information from judicial responsibility for their actions.
“ The person or persons who told the Associated Press about the CIA operation that infiltrated al-Qaeda in the Arabian Peninsula, and Kim — or someone else — who informed Risenabout North Korea, were not whistleblowers exposing government misdeeds. They harmed national security and broke the law (Pincus, Fine Print).”In that sense, it would appear that both Pincus and Feinstein agree with Justice White’s opinion about judicial response in Branzburg v. Hayes:
“ …we cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it (Carter, Franklin and Wright 555).”Maybe grand jury investigations are sometimes the right outcome. Maybe subpoenas and compelling testimony from reporters is sometimes entirely appropriate. Because carving up who does and who does not get a professional privilege in disseminating information to the public has a significant impact on the free flow of information. And one should recognize that those arguments saying otherwise are twisted up like pretzels by special case after special case in an attempt to define away what has always been an equal standard applied to all citizens.
Which brings up the possibility of a different near-term strategy by Obama in promoting a media shield law: To prevent future subpoenas of journalists by special prosecutors who would investigate illicit leaks within the executive. Such an outcome wouldn’t necessarily snap the sword of an independent counsel, but it might help blunt its blade. They’d be after every tiny advantage they can get.
And if, for future administrations, prosecutorial effectiveness is diminished in the interest of executive public relations, from their perspective all the better. Regardless of such quaint concerns as ‘rule of law’ in fair application and adjudication.
And this brings up the third matter, one more serious than simply the interests of media companies and the executive in promoting the law. There is a greater issue at stake, one that concerns every citizen of the United States. A disquieting question about where this is all going.
Across the political spectrum at the grassroots level, from left to right, there have been claims that the press shield represents an attempt by government to censor journalism and not free it with special privilege. Looking back at Matt Drudge calling Senator Feinstein a “fascist” and referring to how a federal judge had once stripped him of the title ‘journalist’ in a legal case gets to the heart of this question. So too the case of Vanessa Leggett, who was refused a state press shield because a judge ruled she didn’t meet the legal definition of a ‘journalist’ under state law, and was therefore jailed for 158 days on a contempt of court ruling. Or that of Josh Wolf, who spent an astonishing 226 days in jail. And Steven Frischling, who found DHS officials at his front door questioning him over a TSA security document he had obtained and published.
These events are suggestive of what Feinstein and the Obama Administration have in store for citizen journalists. They evoke a central question: Is the First Amendment meant for every citizen, as Justice White asserted in Branzberg, or by defining protected classes will government ultimately strip equal protection First Amendment rights from the citizenry? Could this lead to a system of prior restraint – or worse - imposed upon the populace? One that might not exist in the strict form of a legislative licensing decree for the right to print, but in a soft form where the right to express oneself is severely limited without access to the club of ‘protected journalists’.
When William Safire spoke before the Senate Judiciary Committee in support of a press shield, a then jailed Judith Miller was the impetus for him to state that he felt a ‘chill in the air’ which, like a ‘mental prior restraint’ constrained the things he felt comfortable saying. That, for Safire, the act of government jailing Judith Miller for contempt because she wouldn’t reveal the identity of a source whom had divulged classified information was akin to government imposing enough fear by threat of punishment.
Which is a curious logical contortion, since by ‘pulling his journalistic punches’ because of that ‘mental prior restraint’ it would seem he was fearful of reprisal for what he planned to say, whereas Judith Miller’s detention came about because she hadn’t said. Regardless, Safire was probably referring to Near v. Minnesota. Anthony Lewis in, Make No Law, speaks to the risk to free expression of self-censorship as a response to state oppression. “The threat of severe punishment can cause editors and writers to censor themselves; it can be as heavy a deterrent to free expression as a formal legal restraint.” (Lewis 95)
Mr. Safire made that argument from the perspective that were a press shield enacted into law, it would be he, an opinion writer for the establishment newspaper The Washington Post, and his colleagues in the echelons of establishment journalism, who would enjoy the privilege conferred upon him by the state. And, presumably, from his perspective, were congress to abide his good counsel, this threat of ‘mental prior restraint’ would thus subside.
But Safire said those words in 2005. It’s been seven years since then, whole generations in Internet time, and much has changed. For example, Safire’s testimony was given six months before James Risen revealed the existence of the Bush Administration’s warrantless wiretapping program. And he said those words five years before the same James Risen was wiretapped to reveal the identity of his source, Jeffery Alexander Sterling, who was then charged under the Espionage act of 1917. Safire said those words a bit less than six years before it was revealed that an electronic surveillance program had penetrated twenty telephone lines and spied on one hundred reporters at the Associated Press.
So, if, according to William Safire, Judith Miller’s contempt jailing to reveal Scooter Libby’s identity brought a ‘chill to the air’ in 2005; one that evoked for him a ‘mental prior restraint’ in limiting the kinds of things he could report on, just what would he make of overt electronic spying on journalists to determine their sources? Would that not be more like freezing gale force winds from an oncoming offshore blizzard?
Ah, but in one case an actual reporter – Judith Miller – faced a supposedly non-punitive incarceration, whereas in the Risen and AP spying scandals, the administration charged their sources, not the reporters. So lets look at the issue from a news collection standpoint.
The Privacy Protection Act of 1980 makes it, “unlawful for an official of [state or federal] government to search or seize ‘any work product material possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce.’” (The Privacy)
This legislation was a response to the 1978 Supreme Court ruling Zurcher v. Stanford Daily, where the majority ruled that “valid warrants may be issued to search any property, and that even though the Fourth Amendment may protect the materials sought to be seized, nothing in the First Amendment bars searches of newspaper offices.” (Carter, Franklin and Wright 592)
So the question here is whether these wiretaps of Risen and the AP in some way violated the Privacy Protection Act of 1980. I’m sure prosecutors have a well thought through rationale for why that electronic surveillance did not. But the standard is, though government can learn about reporters’ sources and activities through electronic surveillance while conducting a “good faith felony investigation”, prosecutors and the government may not abridge “information gathering activities” of reporters.
Further, such electronic surveillance may not occur in a “bad faith investigation”, or one meant to harass reporters. Because that would impede newsgathering capabilities of reporters and thereby stem the free flow of information. So, to protect the interests of both reporters and investigators, “Before any subpoena is issued, the ‘express authorization of the Attorney General’ is required.” (Carter, Franklin and Wright 593)
Yet according to a 2007 Justice Department report, “…the FBI used its intelligence-gathering privileges by issuing almost 200,000 ‘national security letters’ from 2003 to 2006, many of them to obtain personal records of U.S. citizens and frequently inadequately documented. The Justice Department Inspector General found ‘troubling’ the use of the letters to obtain vast quantities of telephone numbers – leading to increasing calls for protection for telephone records.” (Carter, Franklin and Wright 593)
Therefore, if that Inspector General found excessive use of those letters ‘troubling,’ does that indicate a process whereby these surveillance techniques are used in “good faith”? Is it reasonable to believe that these actions were not meant to ‘harass’ or ‘impede news gathering capabilities of reporters’?
“ …what if [this press shield law] had been proposed in the 1950s, when Congress would have excluded from its journalist designation anyone associated with the Communist Party or liberal groups designated as fellow travelers?”James Rosen of Fox News might think so. He was accused in a warrant affidavit to a judge of being a “co-conspirator” (Justice Department Affidavit) in a leak of classified information. In that case, Rosen had anonymously quoted Stephen Jim-Woo Kim for a 2009 story about North Korea planning a nuclear test (Rosen). In response, the Justice Department claimed he might be engaging in criminal conspiracy to justify digging into Rosen’s electronic records.
-Walter Pincus
During a May 2013 House Judiciary Committee hearing, Attorney General Eric Holder stated that no reporters had been charged along with leakers. Which, when revelations of the Rosen story broke, caught some by surprise. In response to questions about this apparent discrepancy, AG Holder wrote a letter stating that the language used in that affidavit was crafted in an investigatory process and that “…at no time during this matter have prosecutors sought approval from me to bring criminal charges against the reporter.”
Got that?
At one time Kim was a State Department official. Now he’s among the eight unhappy cohorts charged by the Obama Administration under the 1917 Espionage Act. And, if prosecutors were to be believed by judges approving warrants, Rosen nearly joined him. And yet, as Mr. Holder states, no prosecutor ultimately sought approval for a criminal charge against Rosen.
Are we to believe the affidavit for a warrant was made to a judge in ‘good faith’ that was not meant to ‘harass a reporter’ or ‘impede the free flow of information’? And given that ‘express authorization of the Attorney General is required’ in all requests for electronic records, are we to believe that AG Holder was unaware of this discrepancy? Which might explain why some are calling for the impeachment of Attorney General Eric Holder (Ohlheisser).
Or, in a different context, let’s look at the example of Laura Poitras. She’s an American documentary filmmaker who, since 2006, has complained of being repeatedly harassed by DHS agents (Greenwald, U.S. Filmmaker) upon entering the United States. According to her, agents wait for her to deplane, interrogate her, confiscate her laptop, camera, cellphone, and keep it for weeks. But, like Risen and Apuzzo, and entirely unlike Scott Shane and Judith Miller, Poitras has been directly involved in revealing classified materials that embarrassed officialdom. For example, when Glenn Greenwald interviewed Edward Snowden and broke revelations that the NSA was engaged in widespread electronic surveillance against US citizens (Dance and Macaskill), it was Laura Poitras who interviewed Snowden (Maass) on camera.
And if that doesn’t make the case for harassment and intimidation, what of Greenwald’s partner, whom British authorities detained under Schedule 7 of the Terrorism Act at Heathrow airport while he attempted to catch a connecting flight to Rio de Janeiro. David Miranda, the partner, had just left Berlin, where he had met with Laura Poitras, the journalist with a history of getting detained while crossing into US territory. An act Greenwald termed a ‘failed attempt at intimidation.’ (Greenwald, detaining my partner)
That was a month after British officials had raided the offices of the UK Guardian newspaper (Borger), where editors destroyed computer hard drives to impede investigators looking for secret evidence that Edward Snowden had allegedly taken from his employer. Editors said that they destroyed evidence because the UK doesn’t have First Amendment press protections like America, pointing to the Pentagon Papers case as reason for believing US officials wouldn’t attempt prior restraint of publication there.
So, presumably, Guardian editors and probably Greenwald – an attorney – thinks prior restraint is off the table. But, in Greenwald’s words, ‘intimidation’ is perfectly A-OK.
Is this some kind of ‘slippery slope’?
Speaking directly to the question of enacting a press shield law, The Washington Post’s Walter Pincus referred to just that. In an Op-Ed published in response to the Obama Administration’s support for a press shield announced shortly after the AP scandal broke, Mr. Pincus expressed serious reservations at the prospect of a shield law. He argued that the contortions lawmakers were going through to both privilege journalists while excluding those who disseminate ‘leakers’ would lead down a slippery slope to “dangerous standards” in attempting to define who is a journalist that would ultimately diminish First Amendment protections.
Pincus noted that in the prior legislative attempt, Schumer’s bill had attempted to exclude those from protection who were on certain ‘government lists.’ In so doing they would have prevented those who worked as an ‘agent of a foreign power,’ ostensibly to limit access to privilege from Qatar’s Al Jazeera, Iran’s Press TV, and likely Russia’s Russia Today news service. But so too could it be interpreted to affect Great Britain’s venerable BBC.
Asking the always-dangerous hypothetical, Pincus wrote:
“ …what if [this press shield law] had been proposed in the 1950s, when Congress would have excluded from its journalist designation anyone associated with the Communist Party or liberal groups designated as fellow travelers? In the 1960s and 1970s, it probably would have excluded those associated with anti-Vietnam War groups or radical civil rights organization.Because like all analyses of slippery slopes, Pincus’ question evokes yet another: where might the bottom of that slope be?
Who would be added to such a list by a future Congress? (Pincus, A Federal Shield)”
For in the 1950s McCarthyism led to a Hollywood blacklist of writers and filmmakers whose careers were left in tatters merely for the suggestion of communist affiliation. And suppose those people had actually been communists, as many believe to be the case. It shouldn’t have mattered. Just as it was protected speech to oppose the Vietnam War. Because, as Justice Holmes wrote in his 1919 dissent to Abrams, “…we should be eternally vigilant against attempts to check expressions of opinions that we loathe…”
A question Thomas Emerson of Yale Law School saw coming all the way back in 1955. Speaking then of the anti-Communist oath of the Taft-Hartley Act, he wrote:
We are witnessing today a tremendous and ominous expansion of preventative law in the area of civil-liberties. More and more, our controls are being devised not as punishment for actual wrongful conduct, but with a view to preventing future evils by a series of restrictions and qualifications that seriously jeopardize freedom of expression (Emerson 649).”Speaking to how secrecy promoted the self-inflicted wrath of McCarthyism, the late Senator Daniel Patrick Moynihan wrote in his final book, Secrecy, published in 1998:
“ Secrecy has come at a price. As we have seen, the nation paid heavily in the McCarthy moment, when, as Shils wrote, ‘the phantasies of apocalyptic visionaries attained the level of a reasonable interpretation of events (Moynihan 21).’”A problem that is getting worse, not better. As the Associated Press noted in a report on censorship of public records, the United States is using security as a reason to black out more public records than ever before.
“ When the government withheld or censored records, it cited exceptions built into the law to avoid turning over materials more than 479,000 times, a roughly 22 percent increase over the previous year. In most cases, more than one of the law's exceptions was cited in each request for information (Bridis and Gillum).”Which, as the Center to Protect Journalists noted this report on press freedom and the Obama Administration, is that most material remains classified unnecessarily.
“ When I asked deputy national security adviser Ben Rhodes about this, he said, “The president doesn’t like leaks of unauthorized information that can harm national security.” But not nearly all “unauthorized” or classified government information presents that danger. The Obama Administration could do much more to reduce unnecessary classification. “The system is bent deeply in the direction of over-classification of information,” Senator Wyden said. “If done properly to protect only genuine national security information, it would be easier to protect government secrets.” He said it seemed as if classification were being used more to protect people from political embarrassment (Downie Jr. and Rafsky).”Much hasn’t changed. In years past, excessive classification of public records was apparent almost a quarter century ago as well. Then, responding to requests by an independent prosecutor Lawrence Walsh for the Iran-Contra investigation, the government claimed that release of classified materials relating to Oliver North would endanger national security. Erwin Griswold, who had argued the Pentagon Papers case for the government, later claimed he had “never seen any trace of a threat to national security” arising from publication of the Daniel Ellsworth’s revelations. Lewis quoted Griswold’s 1989 Washington Post column challenging government officials’ claims that national security was at risk in revealing secrets to Iran-Contra investigators.
“ It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principle concern of classifiers is not with national security, but rather with governmental embarrassment of one sort or another (Lewis 242).”That system of secrecy might have been appropriately created in the aftermath of World War II. But by the Nixon administration it was already apparent in the Pentagon Papers case that excessive classification was leading to abuse of secrecy for partisan gain and to blunt political embarrassment. This only grew worse through Iran-Contra and by the time of Moynihan’s book in 1998 he wrote.
In the aftermath of 9/11, one can only say the response by government was at best a belief in a ‘fantasy of apocalyptic visions’ that led us to wars across the Middle East. These wars cost trillions of dollars in treasure, vast losses in human life, and vastly increased domestic security while simultaneously curtailing civil rights. (Moynihan 214)
Noting that secrecy is, “at times legitimate and necessary,” (Moynihan 214) still it fosters a rot of public good will, creating a culture of distrust in government. Moynihan proposed a “competing culture of openness” that might be fostered through the then nascent technologies of the “Information Age”. (Moynihan 221) That “open sources [should] compete with covert ones.” (Moynihan 223) Because, “secrecy is for losers.” (Moynihan 227)
In 2002, when Reporters Without Borders began publishing a Press Freedom Index, the United States was listed seventeenth in the world for free press protections. By 2013 it had fallen to thirty-second place, behind such stalwart luminaries of free speech as Jamaica, Namibia, Cyprus, and Uruguay. But we can at least be hopeful given that only six years ago, at the end of the Bush Administration, the index had the United States pegged at forty-eight due to the 228 day detention of Josh Wolf (Press Freedom Index).
It’s not as if there haven’t been warning signs. As Vincent Warrant of the Center for Constitutional Rights wrote regarding the dramatic power shift to the presidency since 9/11:
“ Despite the rampant and brazen illegality put into place in the last 10 years, the courts have rarely called the administration to account for the crimes. The separation of powers concept used to function to circumscribe governmental power. In the last ten years, however, it has functioned to enable the amassing of presidential power. The courts have largely deferred to the president by uncritically accepting the wartime paradigm and giving him free rein to do as he sees fit — even though what he seeks to do is illegal (Warren).”And if there is one aspect of this breakdown in rule of law it is excessive secrecy. In the vast absurdities that have occurred since 9/11 it would be almost funny were it not so deadly serious.
Perhaps Walter Pincus saw the Rosen play and forecasted House Republican Peter King’s June statements on Fox News, where the congressman called for the prosecution of journalist Glenn Greenwald (Edwards). The Nation responded with abject snark, “how very 1798 of him,” (Nichols) referring to the Alien and Sedition Acts of 1798. But what The Nation plays up as snark perhaps Pincus views as the bottom of a slip-n-slide to press unfreedom McCarthy style.
But the British Licensing Act of 1662 failed horribly, not because people objected to censorship – per se – but because the bureaucracy quickly grew unwieldy, resulting in “extreme and even ridiculous” outcomes. Emerson quoted Lord Macaulay for the reasons the House of Commons refused to renew the law, “[Members of the Commons] pointed out concisely, clearly, and forcibly, and sometimes with grave irony which is not unbecoming, the absurdities and iniquities of the statute. … It was condemned … on account of the petty grievances, the exactions, the jobs, the commercial restrictions, the domiciliary visits, which were incidental to it.” (Emerson 651)
Doesn’t this perfectly depict the current situation? An Obama Administration that promised to be the paragon of transparency instead engaging in wholesale electronic surveillance on the press and civilians, where he invoked the Espionage Act of 1917 against twice many people as any president in history, after a series of wars based on false pretenses from a single – if terrible - terrorist act on 9/11 that led to a collapse of civil rights as the executive usurped the power to detain, torture, and even kill people extra-judicially. But at least the President offered a press shield with national security exemptions that make swiss cheese of a privilege that wouldn’t even apply to ordinary citizens.
Could it get any more ridiculous than that?
For if administration officials can do that which they charge felonies of others for doing the same; if they can engage in wholesale electronic surveillance of one hundred reporters to ferret out the source for just two; if, by legislative wrangling, they can effect a kind of ‘discriminatory access’ to the First Amendment by giving one class of citizens special privilege simply by naming them ‘protected journalists’, then no amount of press apologia can hide the ugly truth: the press shield is but one link in a chain being wrapped around freedom of expression to confine the free flow of ideas.
The cynic in me wriggles my nose at this riddle, wrapped by mystery, inside an enigma of rotting entrails heaped up in a pile at that White House table where the Obama plans to sign this thing with a Presidential sweep of the pen once congress finishes gutting it even more. And I fear that the slippery slope Walter Pincus referred to isn’t so much a ramp as it is a joyless amusement park water slide, one that ends by landing upon the harsh cement floor of a jail cell where those who commit the crime of seditious libel find themselves sent to rot for the temerity of improper speech.
I hope to God I’m wrong.
To Do:
Add Dianne Feinstein statement on wishing American journalists are more like Chinese. “they just write what you say.”
Add William Binney NY Times statement referring to Frank Church and his fears of what an unchecked NSA could do to the country.
Add 2007 ACLU report on FFA and quote stating they prefer protecting 'acts' of journalism rather than creating protected classes.
Add minor background on Edward Snowden and why he’s in Russia.
Remove Glenn Greenwald's partner detained at UK airport - this is about the US.
Consider highlighting Authorities vs. Press by looking into organized suppression of the press at Occupy.
First Structural Read Through and Edit
First Language Read Through and Edit
Critiques
Redrafting based on criticism.
Transition to MLA Citations (Done in text; to do in link list)
Final Text conversion to Blogger suitable HTML
Citations:
Books
Carter, T. Barton. Franklin, Marc A. Wright, Jay B. The First Amendment and The Fourth Estate: The Law of Mass Media 10th ed. Thomson Reuters/Foundation Press, 2008. Print.
Lewis, Anthony. Make No Law. Vintage Books, 1992. Print.
Moynihan, Daniel Patrick. Secrecy. Yale University Press, 1998. Print.
PapersLewis, Anthony. Make No Law. Vintage Books, 1992. Print.
Moynihan, Daniel Patrick. Secrecy. Yale University Press, 1998. Print.
Blasi, Vince. The Newsmans Privilege: And Empirical Study. Michigan Law Review, Vol. 70, No. 2, Dec 1971, pp. 229-284.M.
Emerson, Thomas L., “The Doctrine of Prior Restraint” (1955). Faculty Scholarship Series. Paper 2804. Pg. 650
http://digitalcommons.law.yale.edu/fss_papers/2804
Ten Cate, Irene M. (2010) "Speech, Truth, and Freedom: An Examination of John Stuart Mill's and Justice Oliver Wendell Holmes's Free Speech Defenses," Yale Journal of Law & the Humanities: Vol. 22: Iss. 1, Article 2. Available at: http://digitalcommons.law.yale.edu/yjlh/vol22/iss1/2
Links (in order of appearance)Emerson, Thomas L., “The Doctrine of Prior Restraint” (1955). Faculty Scholarship Series. Paper 2804. Pg. 650
http://digitalcommons.law.yale.edu/fss_papers/2804
Ten Cate, Irene M. (2010) "Speech, Truth, and Freedom: An Examination of John Stuart Mill's and Justice Oliver Wendell Holmes's Free Speech Defenses," Yale Journal of Law & the Humanities: Vol. 22: Iss. 1, Article 2. Available at: http://digitalcommons.law.yale.edu/yjlh/vol22/iss1/2
Introduction
Drudge, Matt. "Comments from Sen. Feinstein yesterday on who's a reporter were disgusting. 17-year old 'blogger' is as important as Wolf Blitzer. Fascist!" 13 September 2013. Tweet.
https://twitter.com/DRUDGE/statuses/378449307679985664
United States. Cong. Senate. Free Flow of Information Act of 2013. 113th Cong., 1st sess. S.987. Nov 6th text. Online.
http://www.govtrack.us/congress/bills/113/s987/text
Lennard, Natasha. Patching up scandal: White House pushes for media shield law. Salon Magazine, 16 May 2013. Web.
http://www.salon.com/2013/05/15/patching_up_scandal_white_house_pushes_for_media_shield_law/
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Feinstein, Dianne. Statement to Senate Judiciary Committee. 13 September 2013.
http://www.youtube.com/v/bywtn9RIDRw
Drudge, Matt. "Federal judge once ruled Drudge 'is not a reporter, a journalist, or a newsgatherer.' Millions of readers a day come for cooking recipes??!" 13 September 2013. Tweet.
https://twitter.com/DRUDGE/statuses/378453497366069248
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tvland undated video of Marie Torre speaking to reporters prior to her incarceration
http://www.youtube.com/v/e0051E6XJLc
White, Byron (Ghost Of). "RE: Branzburg, to new Justices I ask: Doesn't Twitter provide the same 'informative function' as carbon paper or a mimeograph? Discuss." 24 November 2013. Tweet.
https://twitter.com/GhostByronWhite/statuses/404554027490226176
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Video of 2003 CNN Interview with Glass promoting his book and film 'The Fabulist'
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Judith Miller pimping a press shield today
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Gov't Secretly Probed AP Phone Records, Associated Press, 13 May 2013. Video.
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Apuzzo, Matt and Goldman, Adam. CIA Thwarts new al Qaeda underwear bomb plot. Associated Press, 7 May 2012. Web. Republished by Yahoo News.
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Greenwald, Glenn. On the Espionage Act charged against Edward Snowden. The Guardian, 22 June 2013. Web.
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Within Glenn Greenwald’s quoted text:
Vows to protect whistleblowers
https://www.techdirt.com/articles/20130620/18182823551/obama-administration-has-declared-war-leakers-claims-any-leak-is-aiding-enemy.shtml
New Yorker Jane Mayer
http://www.newrepublic.com/article/113219/doj-seizure-ap-records-raises-question-chilling-effect-real
James Goodale wrote
http://www.nytimes.com/roomfordebate/2013/05/21/obama-the-media-and-national-security/only-nixon-harmed-a-free-press-more
End Greenwald's Quoted Text
Savage, Charlie. Criticized on Seizure of Records, White House Pushes News Media Shield Law. The New York Times, 15 May 2013. Web.
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Greene, David. Senate Revises Media Shield Law for the Better, But It's Still Imperfect. Electronic Frontier Foundation, 20 September 2013. Web.
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Carpenter, Zoe. Flawed Media Shield Law Goes to the Senate Floor. The Nation, 13 September 2013. Web.
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Hume, Britt. "Press shield law POTUS prev. backed full of nat. security exceptions; would not have stopped either AP or @JamesRosenFNC subpoenas/warrants." 26 May 2013. Tweet.
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Masnick, Mike. Ridiculous Timing: Obama Administration Responds To Spying On AP By Pushing Journalist Shield Law That Wouldn't Matter. Techdirt, 21 May 2013. Web.
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Savage, David G. Bill to protect journalists clears Senate Panel. The Los Angeles Times, 12 September 2013. Web.
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Major papers come out in support of shield bill on editorial pages:
A shield law is necessary to protect U.S. journalists. The Washington Post, 22 September 2013. Web.
http://articles.washingtonpost.com/2013-09-22/opinions/42299450_1_u-s-journalists-journalist-shield-law-federal-judges
Editorial: Prosecutors vs. the press. Chicago Tribune, 24 Jul 2013. Web.
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Editorial: Public, press need federal shield law. Minneapolis Star Tribune, 8 November, 2013. Web.
http://www.startribune.com/opinion/editorials/69424272.html
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Horwitz, Sari. Senate Republicans call fro special prosecutor in White House leaks probe. The Washington Post, 12 June 2012. Web.
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Whitaker, Morgan. The 7 other 'scandals' that didn't turn out to be Obama's Watergate. MSNBC, 13 May 2013; Updated 2 October 2013. Web.
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Fisher, Max. Get caught up on Benghazi, in five short paragraphs. The Washington Post, 17 May 2013. Web.
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STOCKMAN SEEKS SPECIAL PROSECUTORS FOR OBAMA. World Net Daily, 10 October 2013. Web. Rep
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Shepard, Alicia. On the 60 Minutes/Benghazi debacle. Columbia Journalism Review, 11 November 2013. Web.
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Condon, Stephanie. IRS: Progressive groups flagged, but tea party bigger target. CBS News, 27 June 2013. Web.
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Friedersdorf, Conor. All Leaks Are Illegal, but Some Leaks Are More Illegal Than Others. The Atlantic, 13 June 2013. Web.
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Pincus, Walter. Fine Print: The press and national security. The Washington Post, 21 May 2013. Web.
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Rosen, James. North Korea Intends to Match U.N. Resolution With New Nuclear Test. Fox News, 11 June 2009. Web.
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Ohlheisser, Abby. House Republicans Will Try to Impeach Eric Holder. The Atlantic Wire, 13 November 2013. Web.
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Greenwald, Glenn. U.S. filmmaker repeatedly detained at border. Salon Magazine, 8 April 2012. Web.
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Dance, Gabriel and Macaskill, Ewen. The NSA Files: Decoded. The Guardian, undated. Multimedia Overview. Web.
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Maass, Peter. How Laura Poitras Helped Snowden Spill His Secrets. The New York Times, 13 August 2013. Web.
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Greenwald, Glenn. Glenn Greenwald: detaining my partner was a failed attempt at intimidation. The Guardian, 19 August 2013. Web.
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Borger, Julian. NSA Files: why the Guardian in London destroyed hard drives of leaked files. The Guardian, 21 August 2013. Web.
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Pincus, Walter. A federal shield law, potentially a slippery slope. The Washington Post, 30 May 2013. Web.
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Bridis, Ted and Gillum, Jack. US CITING SECURITY TO CENSOR MORE PUBLIC RECORDS. Associated Press, 11 March 2013. Web.
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Downie Jr., Leonard and Rafsky, Sara. The Obama Administration and the Press: Leak investigations and surveillance in post-9/11 America. Committee to Protect Journalists, 10 October 2013. Web.
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Press Freedom Index. Reporters Without Borders, October 2002. Web.
United States 17th for press freedom in 2002.
http://en.rsf.org/press-freedom-index-2002,297.html
United States 44th for press freedom in 2007 due to detainment of Josh Wolf
http://en.rsf.org/press-freedom-index-2007,34.html
United States 32nd for press freedom in 2013
http://en.rsf.org/press-freedom-index-2013,1054.html
End Press Freedom Index Links
Warren, Vincent. The 9/11 Decade and the Decline of U.S. Democracy. Center for Constitutional Rights, undated. Web.
http://ccrjustice.org/the911decade/declineofdemocracy
Edwards, Brenda. Rep. Peter King wants Glenn Greenwald punished. Politico, 13 June 2013. Web.
http://www.politico.com/story/2013/06/nsa-scandal-peter-king-glenn-greenwald-92665.html
Nichols, John. Peter King Goes All 1798 on the Bill of Rights. The Nation, 14 June 2013. Web.
http://www.thenation.com/blog/174797/peter-king-goes-all-1798-bill-rights
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