Lazenby: The War On Journalists Continues

Late last week, a divided federal appeals court ruled that James Risen, a Pulitzer Prize-winning journalist, author, and reporter for The New York Times, must testify in the criminal trial of a former Central Intelligence Agency (CIA) official charged with providing him with classified information. This is the latest in a series of blows to the First Amendment guarantee of a free press struck by the administration of U.S. President Barack Obama – all in the name of national security. I have written previously about the United States Department of Justice (USDOJ) spying on Associated Press reporters, and this website’s founding editor has discussed the USDOJ’s targeting of Fox News reporter James Rosen, against whom prosecutors were able to obtain search warrant for personal e-mails by identifying him as a criminal co-conspirator in the investigation of a State Department adviser who allegedly leaked information to him.

In this latest incursion on liberty, two members of a three-judge panel for the U.S. Fourth Circuit court of appeals, in Richmond, Virginia, ruled the First Amendment does not protect reporters who receive unauthorized leaks from being forced to testify against the people suspected of leaking information to them. A district court judge who had ruled in Mr. Risen’s case previously said that it did.

“Clearly, Risen’s direct, firsthand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony,” chief judge William Byrd Traxler, Jr. wrote in the majority opinion.

Thus, not only can a reporter be forced to reveal his source when a supposed national security concern dictates it, he must also testify against that source in open court about the information obtained. The effect of this opinion on a free press, one of the cornerstones of a free society, could not be more chilling.

Mr. Risen has said he will to go to jail to protect his sources and will continue the appeals process up to the U.S. Supreme Court if necessary. After the verdict, Risen issued a statement that read, “I remain as resolved as ever to continue fighting.”

There is also disagreement among the judges on the court. The third member of the panel that heard the case, judge Roger Gregory, stood up for the rights of journalists in his dissent.

“Under the majority’s articulation of the reporter’s privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial,” he wrote. “The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society,” Gregory wrote.

There can be no denying that the USDOJ has overreached in its pursuit of Mr. Risen’s testimony against his source, and it has done so in a way that jeopardizes constitutional rights in a very frightening way.

There has been an increasingly aggressive focus on prosecuting so-called leakers and whistleblowers whom the government views as a threat to national security in recent years. The prosecution of Pfc. Bradley Manning, who is facing a court-martial after divulging diplomatic cables to WikiLeaks (he already pleaded guilty in court to 10 offenses), and the charges filed against Edward J. Snowden, who leaked information about the activities of the National Security Agency (NSA) to reporter Glenn Greenwald of The (U.K.) Guardian, are two examples. Those who support a crackdown on leaks to reporters insist that doing so protects intelligence gathering operations and is essential to maintaining America’s security interests. Those who are opposed insist that American citizens have a right to know information about their government’s activities when it doesn’t jeopardize the lives of those who work in the intelligence community.

There is admittedly a gray area when it comes to national security leaks, in large part because the definition of what constitutes a matter of national security has been broadened extensively by our government since September 11, 2001.

But when the ire of the government shifts from the leakers of information to the journalists whose job it is to report that information, the threat to civil liberties becomes clearer. It has become increasingly difficult to balance the protections that are supposed to be afforded to the press, the people we entrust to hold our government accountable for its actions, against that same government’s claims of national security concerns.

Regardless of whether you agree with the prosecution of so-called leakers and whistleblowers, forcing a reporter to reveal and testify against his source about the information he received is a clear violation of the freedom guaranteed to the press in the First Amendment. In fact, such tactics amount to intimidation, and when a government wants to operate behind closed doors and reduce transparency and accountability, one of the first steps it takes is intimidation of the press.

A free press is essential to a free society. Civil liberties, which have repeatedly been trampled upon in the name of “national security” by both political parties – especially in the wake of 9/11 – continue to fall by the wayside. Do we really want journalists, the people who investigate and hold our government accountable to the people, to be intimidated by the possibility of being named “criminal co-conspirators” or being dragged in to court to testify against their sources when they are simply doing the job we have entrusted them to do – a job that our constitution recognizes is essential to our freedom? This latest verdict, while appearing to impact only members of the press, actually makes us all less free.

Amy Lazenby is the associate opinion editor at FITSNews. She is a wife, mother of three and small business owner with her husband who splits her time between South Carolina and Georgia. Follow her on Twitter @Mrs_Laz or email her at amy@fitsnews.com.

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