| US Fourth Circuit Court undermines Reporter’s Privilege!

Court Guts Reporter’s Privilege in One of the Most Significant Press Freedom Cases in Decades ~ Trevor Timm, Freedom of the Press Foundation.

 

Often forgotten amidst journalists’ public personas and front page scoops is the crux of their profession: the practice of gathering news. Reporting, at its best, consists of bringing to light information powerful factions want kept in the dark, and the sources for these stories are often people whose careers, or even lives, are at risk if they are exposed. To provide this public service, all good reporters must sometimes promise their sources confidentiality for which they would, in turn, risk their own careers to protect.

Recognizing that robust and uninhibited newsgathering is essential to a free press, many courts have established a common law “reporter’s privilege” which protects journalists from having to testify about the identity of their sources in all but the most extreme cases. Yesterday, in the most significant reporter’s privilege decision in decades, the Fourth Circuit Court of Appeals eviscerated that privilege, in the jurisdiction where it is needed most.

The underlying case involves a former CIA officer Jeffrey Sterling, who is alleged to be a source for an illuminating chapter in New York Times reporter James Risen‘s 2006 book State of War, and Risen was subpoenaed to give up the identity of his source. The court ruled that Risen has no right to a reporter’s privilege in the First Amendment, nor is there a common law privilege in the Fourth Circuit, nor does the Court have the right to create one, nor will they allow Risen to escape testimony even if there was.

The district court, which this decision overturns, had it exactly right when it wrote, “A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook.” Now there is nothing stopping reporters from being used as prosecutors, called to testify as to their sources at the whims of the Executive, which is often times the very branch of government they are reporting on.

Many of the largest government agencies dealing with national security—including the CIA, NSA, and Joint Special Operations Command (JOSC)—are located in the Fourth Circuit; this will undoubtedly make it harder for reporters covering them to do their job. As Marcy Wheeler put it, “This pretty much guts national security journalism in the states in which it matters.”

The stinging dissent, written by Bush-appointed Judge Roger Gregory, suggested the decision betrayed the spirit of the free press clause of the First Amendment, “one of our Constitution’s most important and salutary contributions to human history.”

“Our country’s Founders established the First Amendment’s guarantee of a free press as a recognition that a government unaccountable to public discourse renders that essential element of democracy–the vote–meaningless,” he wrote. “The majority reads narrowly the law governing the protection of a reporter from revealing his sources, a decision that is, in my view, contrary to the will and wisdom of our Founders.”

The district court decision granted James Risen the privilege not to testify after he submitted an extraordinary legal affidavit to the court in which he laid out how his reporting on national security abuses during the Bush administration had led to him being harassed—with his emails, phone calls, and even credit reports being monitored. The Bush administration and members of Congress had publicly threatened him with prosecution under the Espionage Act for his reporting on the NSA’s warrantless wiretapping program. (Sound familiar?)

The Bush administration eventually dropped the subpoena after Risen resisted it for so long, but when President Obama took office, his Justice Department re-issued it and has taken the fight from Sterling’s grand jury, to his trial, and now the appeals court. As Marcy Wheeler wrote, “there is a strong case to be made that the entire point of this trial is to put James Risen, not Jeffrey Sterling, in jail.”

As the New York Times reported Friday, “Mr. Risen has vowed to appeal any loss at the appeals court to the Supreme Court, and to go to prison rather than testify about his sources.” He should be commended for continuing to fight for his rights and others’.

This should strengthen the calls for a federal shield law that will once and for all codify protections most courts already provided (at least up until today). But be warned: the current bills circulating in the House and Senate are quite dangerous and should be resisted by all media organizations until substantial fixes are made. The Senate bill contains a significant national security exception, which as we’ve explained before, would make the bill meaningless for the only journalists who need the law in the first place. The bills also contain restrictive definitions of journalism that will leave many bloggers and independent journalists without protection.

Whatever happens, make no mistake: this is a dark day for press freedom in the United States. This decision not only deals a blow to all national security journalists, but to the public at large, whose right-to-know will certainly suffer because of it.

____________________________________________________________________

Related articles

• Court Guts Reporter’s Privilege in One of the Most Significant Press Freedom Cases in Decades (pressfreedomfoundation.org)
• Fourth Circuit Voids Protection of Reporter in Leak Case (legaltimes.typepad.com)
• Appeals Court Rejects Reporter’s Privilege in Leak Case (blogs.fas.org)
• Is Freedom of the Press Dead? (jonathanturley.org)
• Federal Court Rules That NY Times Reporter Must Testify In Leak Investigation (outsidethebeltway.com)
• Journalist James Risen ordered to testify in CIA leaker trial (guardian.co.uk)
• Court rejects reporters’ privilege (politico.com)
• NYT’s James Risen Ordered to Testify in CIA Leaker Trial (readersupportednews.org)
• In Ruling Ordering Times Reporter to Testify Against Source, Dissenting Judge Defends Freedom of the Press (dissenter.firedoglake.com)

| Backlash as US falls to 47th in press freedom rankings after Occupy crackdown!

US falls to 47th in press freedom rankings after Occupy crackdown

~ ELLEN CONNOLLY

Sweeping protests around the world made it an extremely difficult year for the media, and tested journalists as never before, the annual report into press freedom reveals.

The annual report by Reporters Without Borders has been released, showing the United States fell 27 points on the list due to the many arrests of journalists covering Occupy Wall Street protests.

The slide in the United States places it just behind Comoros and Taiwan in a group with Argentina and Romania.

Under arrest: Journalists covering Occupy Wall Street protests found themselves a target of authorities

Reporters Without Borders said the heightened unrest around the world resulted in a significant shake-up of the group’s annual Press Freedom Index, which assesses governments’ commitment to protecting media freedoms.

The Paris-based non-governmental Reporters Without Borders has named “crackdown” the word of 2011 in an assessment of global media freedom during a year in which journalists covering sweeping protests were tested as never before.

The non-governmental organisation seeks to defend journalists’ freedom to work and combat censorship internationally.

More…

• Perfect harmony? No, politicians cosying up to pop stars ALWAYS leads to discord
• ‘Daddy’s scared and hiding in the attic’: 4-year-old rats out father when police come with a warrant

Despite the big changes, some constants remained. The country with the freest media in the world was Finland, followed by Norway, Estonia, the Netherlands and Austria. Eritrea was last, with North Korea just above.

The United States was not alone in the falling grades: Bahrain fell 29 points because of the crackdown in that country.

Egypt and Syria also fell a few points to languish near the bottom of the pack (166) and (176) respectively.

The group judged that Syria, along with Iran and China, ‘seem to have lost contact with reality as they have been sucked into an insane spiral of terror.’

Pakistan was the world’s deadliest country for journalists, and Eritrea came in last in the list of overall press freedom.Syria, where an uprising against the government has been met with a brutal crackdown that has left more than 5,000 people dead, received its worst rating ever at 176.

 

Press freedom? Journalists sit it out in a hallway as gun-battles continue around the Rixos hotel in Tripoli, Libya, in August last year

In Afghanistan (150th) and Pakistan (151st), reporters remained under constant threat from the Taliban, religious extremists, separatist movements and political groups. With 10 deaths last year, Pakistan was the world’s most dangerous country for journalists for the second year in a row.

‘Never have journalists, through their reporting, vexed the enemies of freedom so much. Never have acts of censorship and physical attacks on journalists seemed so numerous.

Clashes: Occupy demonstrators are confronted by police as they march to the White House

The equation is simple: the absence or suppression of civil liberties leads necessarily to the suppression of media freedom. Dictatorships fear and ban information, especially when it may undermine them,’ it said.

Elsewhere within the European Union, countries such as Bulgaria (80th), Greece (70th) and Italy (61st) failed to address the issue of media freedom violations, largely because of a lack of political will.

Libya came in 154th in the list, while Yemen was in 171th place.’
‘The future of both of these countries remains uncertain, and the place they will allow the media is undecided.

The same goes for Egypt, which fell 39 places to 166th place.’

Syria was 176th, because journalists were unable to work because of total censorship, widespread surveillance, indiscriminate violence and government manipulation.

The report also highlights how pro-democracy movements that tried to emulate the example of the Arab revolutions were brutally suppressed. Vietnam (172nd) saw many arrests, while China (174th) stepped up its system of controlling news and information in response to public dissatisfaction with corruption and other injustices.

The biggest falls in the index were in Africa – Djibouti fell 49 places to 159th, Malawi (146th) fell 67 places and Uganda fell 43 places to 139th.

The Paris-based press freedom watchdog said Wednesday that the wave of uprisings in the Middle East, the Occupy movement in the West and continued protests in China gave journalists an unprecedented role in advancing democracy. But they also were often targeted by governments trying to quash dissent.

‘Never has freedom of information been so closely associated with democracy. Never have journalists, through their reporting, vexed the enemies of freedom so much,’ the group said in a statement accompanying its report.

But the important role journalists played put them in the cross hairs of repressive regimes, the report said, adding: ‘Never have acts of censorship and physical attacks on journalists seemed so numerous.’