Last week Pulitzer Prize winning reporter James Risen tweeted that the “Obama Administration is the greatest enemy of freedom of press in a generation.” See here. This may well be true. Certainly, the Obama Administration is no friend of the press. In Risen’s case, it used subpoenas to secure his credit-card reports and records, travel records, and bank records to determine who the source of one of his stories might be, and it argued that the First Amendment provided no protection for confidential sources. As I have previously discussed, this harassment of reporters has not been confined to Mr. Risen. See generally here.
In addition, the campaign against the leakage of information embarrassing to the Administration extends to the whistleblowers who provide the press with the information. The government recently prosecuted Jeffrey A. Sterling for providing information to Mr. Risen. It claimed that national security was compromised in a story that disclosed a botched operation by the government regarding Iran, an operation that was a secret to the American people, but well known to Iran. As the New York Times reported last month, “Mr. Sterling is the latest in a string of former officials and contractors the Obama administration has charged with discussing national security matters with reporters. Under all previous presidents combined, three people had faced such prosecutions. Under President Obama, there have been eight cases, and journalists have complained that the crackdown has discouraged officials from discussing even unclassified security matters.” See here.
In fairness, it should be observed that Attorney General Holder has stated that he will not send reporters to jail, but that is his personal policy, not the official policy of the Justice Department. And if one puts together the sweeping investigations into the private lives of reporters and the prosecution of those who provide information to reporters, we are coming close to a situation in which the Administration can reveal flattering information about its actions (even if classified), but will use the force of law against those who embarrass the Administration by revealing classified information (even when it is over-classified).
This will not change without an Administration more sensitive to the importance of dissent in a democratic society, or a Court that actually cares about civil liberties in general and dissent in particular. It seems to me that the central issue is to recognize that confidential sources must be protected in order to assure that serious reporting about government abuses is not chilled and that the dragnet pursuit of information into the private lives of reporters should be barred. Even with a liberal majority, there is one conceptual hurdle to be confronted. If confidential sources are to be protected, how is one to define the press? The blogosphere presents a problem. For example, would this blog be the press for purposes of confidential source doctrine. Many have suggested that the difficulty of drawing lines embarrasses the possibility of a press privilege.
To this, I have four responses. First, that line drawing may be difficult is not a knockout blow in First Amendment doctrine. For example, figuring out what is defamatory or who is a public figure is often not easy, but the need to draw lines does not invalidate the concepts. Second, many statutes (and the European Convention on Human Rights, as interpreted) currently provide a press privilege for confidential sources and have been in the business of defining the press for some time. The same applies to government issuance of press passes. Third, the solution to the blog puzzle best lies in recognizing that everyone is not the press just because their particular writing reaches multiple readers. As Sonja West argues in Press Exceptionalism, 127 Harv. L. Rev 2434 (2014), the press gathers newsworthy information, disseminating it to the public, and at its best acts as a check on powerful people. In determining who should qualify for a reporter’s privilege, she suggests one should look at factors such as recognition by others as press, holding oneself out as the press, training, education, or experience in journalism; and regularity of publication and established audience. Applying these factors, leads to a large number of easy cases. Reporters in newspapers whether published on paper or on line qualify for a privilege. Bloggers like me do not. Journalism in the form of books like Risen’s present a case in the middle. The publication has not gone through the discipline of a news organization, but the author is an experienced journalist trained in and a veteran in writing news analysis.
I would afford a reporter’s privilege for the journalist author, but it is important to recognize what is not at stake in drawing these lines. The question whether someone is a reporter for First Amendment purposes should determine whether certain privileges such as the confidentiality of sources are rightly afforded. But one need not be a reporter to otherwise to enjoy First Amendment free speech protections, and that means that the full array of free speech protections should apply to the street corner pamphleteer and the blogger. I would further argue that the dragnet inquiries into the privacy of speakers triggered by the content of what they write is an assault on First Amendment and Fourth Amendment values. But the realization of those values depends on different administration or a Court whose rights agenda and emphasis stretches beyond protecting corporations and the privileges of white men.