Freedom of the press is considered an essential ideal of American democracy.
President Obama acknowledged as much last month, when he draped a Presidential Medal of Freedom around the neck of former Washington Post executive editor Ben Bradlee.
“With Ben in charge, The Post published the Pentagon Papers, revealing the true history of America’s involvement in Vietnam, exposed Watergate [and] unleashed a new era of investigative journalism,” Obama said, “holding America’s leaders accountable and reminding us that our freedom as a nation rests on our freedom of the press.”
But New York Times reporter James Risen says that, in terms of transparency and attitude toward the press, the Obama administration “is the worst.”
“I think it’s worse than the Bush administration, which I never thought I would say,” Risen tells NPR’s Arun Rath.
Risen has found himself at the center of a modern fight over what “freedom of the press” means and the question of just how much the First Amendment shields reporters from the law.
A Reporter’s Rights
Risen is most well-known for revealing the National Security Agency’s wiretapping program in 2005. His book, State of War, released in 2006, contains a chapter about a bungled CIA operation.
He reported on an effort to sabotage the Iranian nuclear program by supplying faulty blueprints. The operation failed when a sketchy middleman revealed the flaws to the Iranians.
It was a dramatic and embarrassing story, and one that would never have been told without Risen’s unnamed source.
The Bush administration investigated a former CIA officer named Jeffrey Sterling, and in 2008, Risen was subpoenaed to testify against him. Risen refused to do so, arguing that he had a First Amendment right as a reporter to protect his source.
The incoming Obama administration not only continued to pursue the subpoena, it doubled-down on efforts to compel Risen to testify.
“They’ve taken the whole legal approach on this issue to a new level,” Risen says. “The Bush administration really talked a lot about these issues, but the Obama people have actually done … a lot more aggressive investigations and prosecutions, and I think they’ve made things much worse.”
According to Risen, court documents showed that the government had access to numerous pieces of his personal information, including travel records, credit card activity and credit reports. He also says that witnesses who testified before the grand jury told him they were shown copies of phone logs of interactions between themselves and Risen.
“It’s never been clear to me how they were getting those phone logs,” Risen says.
When Risen’s former New York Times colleague Judith Miller was willing to brave jail to protect a source, it received a lot of press, even before she actually went to prison. But Risen’s case has received noticeably less attention.
He says that perhaps, in an era of tighter security post-Sept. 11, people are getting used to these types of stories.
“I don’t think there’s a big public constituency for the press,” he says. “And people don’t really care about our problems too much, which I can’t blame them about, really.”
Risen says the controversy is relevant to people who aren’t journalists because it is about freedom of the press in America, and no longer just a specific case.
He says one of the things that surprised him about the government’s approach to this case was how the Obama administration, in its appeal, laid out its constitutional argument.
“The reason they were appealing this was because they don’t believe there is any reporter’s privilege in a criminal case,” he says. “And the fact that the 4th Circuit, three-judge panel essentially accepted that view makes this a very fundamental constitutional issue.”
Risen says that if there is no such thing as a reporter’s privilege, and the First Amendment doesn’t provide sufficient protection to journalists to do their job, then confidential sources in American journalism will be at risk.
“Oversight [and] accountability journalism throughout the United States will be at risk, and so I think this is a very fundamental issue that I’m willing to fight for,” he says.
The Government’s Case
Rodney Smolla, a First Amendment scholar and a visiting professor at the Duke University School of Law, says that while he respects Risen’s convictions, the journalist is essentially engaging in civil disobedience.
“Although First Amendment values are enormously important to our society, there are other values that are also important,” Smolla says. “One of the most fundamental notions in a system that believes in the rule of law is that courts are entitled to every person’s evidence.”
When a journalist accepts material from someone who they know is breaking the law by doing that, Smolla says that while the journalist is engaged in the altruistic and important function of news gathering, he or she is also watching a crime in progress.
“The traditional notion in this country is that no one is above the law, and even though we have many situations in which we protect confidentiality, at times that must give way,” he says.
Smolla says he respects Risen’s integrity in wanting to protect his source, but cites the 1972 case of Branzburg v. Hayes, in which the Supreme Court ruled a reporter did not have the right to refuse a subpoena in a criminal case. Smolla says the ruling offers a strong argument that the First Amendment does not protect journalists from being forced to testify when they have evidence of a crime.
‘The Right Balance’
Over the years, media lawyers found enough gray area to argue that in some cases, reporters could refuse a subpoena. But today, the consensus is that reporters like Risen do not have a First Amendment right to protect their sources. Not at the federal level at least.
“Ironically, if he were involved in a state court tussle with the government, there would be a much greater probability that he could protect a confidential source,” says Lucy Dalglish, the dean of the University of Maryland’s journalism school.
While a majority of states have some kind of law to shield reporters, Dalglish says, there’s nothing at the federal level. She says that reporters have been battling for years trying to get Congress to pass a shield law, but so far have not been successful.
Dalglish says federal subpoenas for reporters have actually declined recently, however — but not for reasons investigative reporters would celebrate.
“They can grab your credit cards, they can grab your airplane tickets [and] they can monitor your phones,” Dalglish says. “I’ve had people in the government tell me … ‘This is one of the last subpoenas you’re ever going to see because we don’t need you people anymore. We know who you’re talking to.’ ”
In a statement to NPR, the Department of Justice said that it believes “that leaks of classified information damage our national security and must be investigated using appropriate law enforcement tools,” but that it is “committed to making sure we strike the right balance in protecting the First Amendment and protecting information vital to our national security.”
As for Risen, his lawyers plan to file with the Supreme Court in January. If that fails, he says he’ll go to jail rather than reveal his sources.