Saturday, June 07, 2014

161.3 - Outrage of the Week: SCOTUS and press freedom

Outrage of the Week: SCOTUS and press freedom

Now it's time for our other regular feature, the Outrage of the Week. This is going to a rather long one because it will require some backfill and expansion. In any event, the source of the outrage this week is one that has been the source of too much outrage the past few years: the United States Supreme Court.

We have to start by noting that James Holmes stands accused in Colorado of the murderous rampage in a movie theater in Aurora, Colorado two years ago, in which he's accused of killing 12 and wounding 70 more.

The judge in that case issued a gag order covering most related things, but someone leaked information to a reporter about a notebook depicting violence that Holmes sent to his psychiatrist. Defense attorneys said that affected his chance for a fair trial, so they wanted that reporter, Fox News reporter Jana Winter, to be forced to testify about her source for the story.

The New York state Supreme Court said she was protected by that state's strong reporter shield law and Colorado prosecutors could not compel her testimony. Colorado appealed to the Supreme Court and, to its credit, on May 27, the Court refused.

Just six days later, that same Court said that federal prosecutors can force New York Times reporter James Risen to testify about his source for a story under pain of a contempt of court citation and a prison sentence of literally indeterminate length.

James Risen
No, the difference is not one of Fox News versus the New York Times. The difference is one of defense attorneys trying to protect an accused murderer versus a federal prosecutor screeching about "national security," the magic incantation that makes judges' brains turn to oatmeal.

Here's the background: Back during the Shrub administration, someone in the intelligence community leaked to Risen some classified information about a covert US operation to undermine Iran's supposed (and probably non-existant) nuclear weapons program. It involved using a former Russian scientist posing as a rogue nuclear mercenary to deliver fake plans to the Iranians.

Risen wrote a news story about the operation, but the Times' editors spiked the story after the CIA director and Bush's national security adviser asked them to. In 2006, Risen's book State of War was published; it included an account of the Iranian operation - and operation which, the account made clear, actually was botched.

Subsequently, federal prosecutors charged Jeffrey Sterling, a former case officer who ran the Iranian operation, with being Risen's source and filed multiple felony charges against him. They had a fair amount of evidence, including phone and email contacts between Sterling and Risen and the fact that in his book, Risen sometimes told the story from the perspective of the person in a position Sterling occupied.

But that wasn't enough, oh, no. The feds wanted to force Risen to sit in court and say directly "Jeffrey Sterling was my source" - that is, to force him to betray his promise of confidentiality and turn in his source to save his own skin.

Why? Was it because, despite that other evidence, they needed his testimony? Because they couldn't get a conviction without it? If that was the case, then why now, after the Supreme Court has let stand an appeals court ruling that there is no such thing as what's known as "journalistic privilege," no such thing as a journalist's right to protect their sources in the face of a subpoena, why now is there still a question about whether or not the feds will actually call Risen to testify?

What's more, the appeals court's flat dismissal of journalistic privilege flies in the face of the facts. The claim was based on a 1972 Supreme Court ruling called Branzburg v. Hayes, in which the Court ruled 5-4 that there is no absolute Constitutional protection for reporters. But one of those five was Lewis Powell, who wrote a separate concurring opinion to emphasize “the limited nature of the court’s holding.” He wrote that there should be a balance struck "between freedom of the press and the obligation of all citizens to give relevant testimony." In other words, the question of privilege should be decided on a case-by-case basis, not dismissed altogether. The Appeals Court was clearly wrong - and the Supreme Court, apparently loath to challenge the fed's "national security" justifications for the case by asking any questions, failed to correct it.

I also think the court was wrong in the original Branzberg case, that there is such a thing as journalistic privilege. There must be if we are to have real freedom of the press. To explain why, I have to go to another part of the First Amendment, the part about free speech.

Back in May of 1971, there were a series of demonstrations in Washington, DC, against the Indochina War. Three days of rallies, protests, and nonviolent civil disobedience. There were some 15,000 arrests over that time, including 7,000 on the first day. Virtually all of those arrests, it turned out, were illegal or illegally conducted and the city lost several civil suits as a result.

On the third day, there was a large rally on the steps of the Capitol, with people spilling out onto the lawn. A few thousand people were listening to speeches, including by members of Congress. Bella Abzug was one, Ron Dellums was another; I forget who the others were. The group had every legal right to be there, this was an entirely legal action: Members of Congress have the authority to invite people to attend a speech they are giving at the Capitol, even if that invitation is to several thousand people who wind up sitting on the lawn.

Nonetheless, DC police began arresting the audience. I know about this because my first wife was among those arrested. To show how absurd this all was, the actual charged written on my ex's arrest form, the actual charge, and this is an exact quote, the charge was "doing certain things on Capitol grounds." Quote unquote. Needless to say, those charges were dropped and the arrests became one of successful the civil suits against the district.

William O. Douglas
But here's the point of all this: Another suit that arose out of this was filed by those members of Congress, who charged that the DC police had violated their right to free speech. The city responded by saying of course not, they had not in any way inhibited those members from speaking. But the courts agreed with the contention that the right of free speech has no meaning without a right to be heard. By unlawfully arresting their audience, the police had prevented those members of Congress from being heard. That is, a right to be heard is clearly part of a right to speak. The First Amendment doesn't say that - but it must mean that in order to mean anything at all.

The 1965 Supreme Court case of Griswold v. Connecticut was a landmark that established a Constitutional right to privacy - even though "privacy" is mentioned nowhere in the document. Justice William O. Douglas, writing for the majority, declared that the right was to be found in the "penumbras" of other Constitutional protections. A penumbra is the partial shadow outside the complete shadow cast by an opaque body. We probably hear it most commonly in reference to partial lunar eclipses, when the Moon is in the fringes of the shadow cast by Earth.

The point Douglas was making on behalf of the majority was that protections written in the Constitution cast a sort of legal shadow to encompass principles not expressly stated but without which those protections lack full meaning.

So now go back to the First Amendment and the freedom of the press.

The famed journalist (any my personal hero) I. F. Stone is the source of the truism that "All governments lie." Which also means that all governments will try to hide from you things you have a right to know; even more importantly, to hide from you things you should know. But as a practical matter, the only way that happens, the only way those hidden things get into the light, in most cases is that someone who does know but is not supposed to tell anyone else, does it anyway and tells it - leaks it as an anonymous source - to someone who is in a position to spread that information more widely. That is, tells someone who either is in or has contacts in the media.

Without that process, without what are commonly called "unauthorized leaks," which is quite funny when you think about it because it just confirms the existence of "authorized leaks," which is a classic oxymoron - but without that process, what we are left with is media consisting essentially of only what the government is willing to have us see and hear and read. Now, it's safe to say that in that case some of what we would see, hear, or read, the government would be happy for us to do so because it would serve the government's purpose. It's also safe to say that for most all of it, the government really couldn't care one way or the other. And for some of it, the government wouldn't like it being seen or heard or read because this would not mean the end of criticism of the government. But it would mean the end of a sort of informed criticism of government. Because it would mean that all of what is out there is what the government is willing to have out there.

Here's the question: In such a case, is there really such a thing as freedom of the press? Is the press truly free when all it says - because it's all that there is available to say - is what the government is willing to have said? Again, not necessarily what it wants to have said or is happy to have said, but what it is willing to have said? Is there such a thing as a true freedom of the press that does not include the ability to uncover and report on things that the government would rather we not know?

Which raises the next obvious question: Given that, how can we expect those anonymous sources who are the means by which we discover those hidden truths, those sources who are not prepared to sacrifice their jobs or even their freedom by going public but who want to get this story out, how do we expect them to do this, to take the risk of discovery, to risk their jobs and their freedom, if those to who they tell the secrets can be forced at a prosecutor's whim to betray them?

It seems to me that journalistic privilege is clearly within the penumbra of freedom of the press. Just like freedom of speech is meaningless absent the freedom to be heard, so too is freedom of the press meaningless absent the right of the people to know and that right is at least greatly circumscribed absent the ability to protect confidential sources.

And this is where the outrage comes in: There is no way the members of the Supreme Court do not know all that. They cannot not know the effect of denying reporters' ability to protect their sources. They cannot not know the impact, the chilling impact, forcing reporters to testify will have - not on the reporters, but on the sources, the people journalists depend on for the information, the people we all depend on to reveal what should be revealed, to stop the concealment of what should not be concealed, to let us know what we need to know. They cannot not know of what Risen’s lawyer, Joel Kurtzberg, called the "countless stories of tremendous historical significance ... [which] would never have been written without the reporter’s ability to promise sources confidentiality and keep those promises."

He cited
the Watergate break-in and cover up, the abuse of prisoners at Abu Ghraib, the CIA’s waterboarding of terrorism suspects, the existence of secret CIA prisons in Eastern Europe, the NSA’s use of warrantless wiretaps on US citizens, and the systematic lack of adequate care for veterans at Walter Reed Army Medical Center
as "just a few" examples. I'm sure we each could come up with our own list.

True, there is no specific guarantee of such a privilege in the Bill of Rights, but neither is there a specific reference to a right of privacy anywhere in the Constitution and despite the recognition of the existence of such a right, the republic and the Constitution both appear to have survived.

The importance of the journalistic privilege is great enough that 49 states and the District of Columbia have some form of a reporter’s shield, either a law or a court-recognized privilege or both, protecting journalists from having to reveal their sources.

Those, however, apply to state courts. Risen's case involves federal court. And despite a lot of talk about a federal shield law - the House has passed a version more than once, the Senate Judicary Committee has done so as well - and despite all the talk about one being passed this year, there isn't one yet.

So think of what we would not know that we should know, would never have known, if reporters had not been able to protect their sources. There is no way the members of the Supreme Court do not know the meaning of what they have done here. And they simply Do. Not. Care.

And that is an outrage.

Sources cited in links:

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