Written by Roger Aronoff
While the media are usually doing the bidding of President Obama and the Democrats, and are deep in the President’s pocket, there are cases in which they are very unhappy with his actions. New York Times reporter James Risen has become famous not only for his ongoing Espionage Act case, but also for his willingness to call President Obama the “greatest enemy to press freedom in a generation.”
In the case of Fox News reporter James Rosen, the government “monitored Rosen’s movements in and out of the State Department,” according to CBS News. They also “searched his personal emails and combed through his cell phone records.” Risen received similar treatment: his computer was subjected to forensic analysis and his phone calls were investigated.
Yet President Barack Obama’s press secretary recently had the temerity to joke to another Fox News White House correspondent that “We are always watching.” Rosen was labeled a “criminal co-conspirator” alongside Stephen Jin-Woo Kim, who recently went to jail for his crime. Clearly, the Obama administration has either not learned from its mistakes—or doesn’t care.
As I mentioned in an earlier article about Obama’s ongoing war on journalists, Risen appealed to the Supreme Court to carve out special immunity for reporters in the courts. But his bid to be heard by the Supreme Court failed, leaving him no more legal options.
Now, he has “exhausted all his legal options against the Justice Department’s pursuit of him under the controversial Espionage Act,” reports The Guardian this month. If pursued, Risen could end up in jail for his act of “journalistic defiance” as early as this fall, reports the Guardian.
Journalists are rallying to Risen’s side as he becomes a media darling for his defiance in the face of Obama administration pressure. Fourteen Pulitzer Prize winners have issued statements in support of him, 100,000 petitioners have voiced their concerns about his case to the Department of Justice, and The Washington Post editorial board has come to his defense.
But one of the disturbing developments of the Risen case is the push for a media shield law to create special protections for journalists. “The Risen case, [Gregg] Leslie [of the Reporters Committee for Freedom of the Press] said, provides a clear picture for why a federal shield law is needed to complement similar laws in 49 states,” reported Business Insider on August 27. “The Supreme Court’s dismissal of his petition, Leslie said, is more evidence of what he called a ‘disturbing’ trend—federal courts have been less and less willing to side with reporters’ arguments.”
This is not the first time the media have called for a shield law. Back in 2008 Accuracy in Media’s Cliff Kincaid called the proposed law what it really is: not the Free Flow of Information Act, but the “Special Rights for Journalists Act.” “The bill puts in the hands of federal politicians and judges the ability to define a ‘legitimate’ journalist or blogger who is deserving of federal protection,” wrote Kincaid in 2008. “As such, it restricts First Amendment rights to a certain group of people currently in favor with federal authorities.”
The legislation could create an unhealthy relationship between the media and the federal government. “For any potential source, it increases the risk of going through a non-establishment journalist,” Harvard professor Yochai Benkler told The Nation magazine last year when this legislation passed out of a Senate committee. “If you are a source, and you have a choice between going to feed someone who clearly falls under the shield, and someone you have to rely on pulling the right judge, you’re going to go to the established journalist.” Thus The New York Times becomes more favored by the law than citizen journalists when it comes to making news.
All First Amendment protections under the law should be applied equally, regardless of education, financial status or employment status. But giving special status to journalists promotes group rights, not equality before the law. The way it has often been described is that the “lone pamphleteer” should have the same protections under the First Amendment as do major news organizations.
Jeffrey Sterling, a former CIA official, is openly acknowledged as Risen’s source for his chapter in State of War. “Observers of the [Risen] case view it as pure retaliation,” reports Business Insider. The evidence would tend to lean in this direction. After all, the government already has digital evidence of Risen’s complicity without his testimony. “Telephone records indicate that Sterling called Risen seven times between February 27 and March 29, 2003,” states the Fourth Circuit findings. “Sterling also sent an e-mail to Risen on March 10, 2003—five days after his meeting with the SSCI [Senate Select Committee on Intelligence] staff—in which he referenced an article from CNN’s website entitled, ‘Report: Iran has “extremely advanced’ nuclear program,” and asked, ‘quite interesting, don’t you think? All the more reason to wonder...’”
And, “During this time, 19 telephone calls took place between The New York Times’ Washington office and Sterling’s friends’ home telephone number. ...A forensic analysis of the computer Sterling used during this time revealed 27 e-mails between Sterling and Risen, several of which indicated that Sterling and Risen were meeting and exchanging information during this time period.”
So the government can prove that Sterling and Risen were working together, that Risen had the information during that time period, that he chose to publish it in his book, and that Sterling may have had a grievance with the CIA motivating him to leak the information. It seems like a pretty solid legal case already. But they may be going after more than one leaker: “...Risen has not disclosed whether there is more than one primary source of classified information.”
While these are difficult and complicated issues to sort through, there should be no federal, blanket media shield law to protect all journalists. The First Amendment is that shield. These matters should be judged on a case by case basis.
Risen’s view, that the Obama administration is “the greatest enemy to press freedom in a generation,” is a view shared by other unlikely sources. Leonard Downie, former executive editor of The Washington Post, for example, said that “The [Obama] administration’s war on leaks and other efforts to control information are the most aggressive I’ve seen since the Nixon administration, when I was one of the editors involved in The Washington Post’s investigation of Watergate.” And David Sanger of The New York Times said of the Obama administration, “This is the most closed, control-freak administration I’ve ever covered.” Apparently, most of the broadcast and cable news journalists don’t share this view. If they do, they don’t often express it. Maybe they’re too afraid of losing access.