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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…

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

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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28 comments

junior justice July 23, 2013 at 8:29 am

Amy, you have never been so correct — stand tall and strong!

Reply
junior justice July 23, 2013 at 8:29 am

Amy, you have never been so correct — stand tall and strong!

Reply
Frank Pytel July 23, 2013 at 9:01 am

If they actually held someone accountable, excepting those very few politicians that do not walk lock step with the Repuklicrats and Demlicans, I would agree. Unfortunately they are part and parcel with the politburo. Have been for several regime changes.

In for a penny in for a pound I believe is the saying.

Reply
Curious July 23, 2013 at 9:07 am

Glenn Greenwald, the reporter who got the scoop from Snowden, definitely isn’t in lock step.

Reply
Guest July 23, 2013 at 9:44 am

And Congressman Peter King from New York (R) wanted to prosecute Greenwald.

Reply
YallCalmDown July 23, 2013 at 10:29 am

Good thing Greenwald lives in Rio.

Reply
Frank Pytel July 23, 2013 at 10:16 am

The inverse is true curious. In for a penny in for a pound.

Reply
Frank Pytel July 23, 2013 at 9:01 am

If they actually held someone accountable, excepting those very few politicians that do not walk lock step with the Repuklicrats and Demlicans, I would agree. Unfortunately they are part and parcel with the politburo. Have been for several regime changes.

In for a penny in for a pound I believe is the saying.

Reply
Curious July 23, 2013 at 9:07 am

Glenn Greenwald, the reporter who got the scoop from Snowden, definitely isn’t in lock step.

Reply
Guest July 23, 2013 at 9:44 am

And Congressman Peter King from New York (R) wanted to prosecute Greenwald.

Reply
YallCalmDown July 23, 2013 at 10:29 am

Good thing Greenwald lives in Rio.

Reply
Frank Pytel July 23, 2013 at 10:16 am

The inverse is true curious. In for a penny in for a pound.

Reply
? July 23, 2013 at 9:43 am

Our gov’t doesn’t like the notion that the press are the “watchdogs” on them.

Let’s put all this totalitarian behavior in perspective though:

1. I seem to recall that President Adams put a sitting senator in jail under the Alien & Seditions acts (someone can look it up and verify) for calling him “fat”(which he was).

2. Lincoln jailed tons of reporters in the north for calling him out on the real reasons for the WBTS….that’s right…he jailed them for speaking their minds AND suspended Habeas Corpus during that time.

There’s a reason that his monument brandishes fasces under his arms.

Anyway, it’s the nature of gov’t. Gov’t is force. Period. Lord Acton applies obviously.

The more gov’t, the more force.

Reply
? July 23, 2013 at 9:43 am

Our gov’t doesn’t like the notion that the press are the “watchdogs” on them.

Let’s put all this totalitarian behavior in perspective though:

1. I seem to recall that President Adams put a sitting senator in jail under the Alien & Seditions acts (someone can look it up and verify) for calling him “fat”(which he was).

2. Lincoln jailed tons of reporters in the north for calling him out on the real reasons for the WBTS….that’s right…he jailed them for speaking their minds AND suspended Habeas Corpus during that time.

There’s a reason that his monument brandishes fasces under his arms.

Anyway, it’s the nature of gov’t. Gov’t is force. Period. Lord Acton applies obviously.

The more gov’t, the more force.

Reply
EJB July 23, 2013 at 10:14 am

The press is reaping what it has sown and complains they get radishes rather than corn.

I agree this is wrong but they didn’t start going wrong yesterday, this administration has behaved badly from the start, look at all the Czars that 0bama uses to bypass congressional approval of cabinet secretaries (want to guess who actually calls the shots, the secretary or the czar?). The press has sheltered this president and his administration and party since the campaign of 2008 and is now pissed because wolves do eat even those that help them.

Ms. Lazenby, I agree with you whole heartedly and I would hope that the press is finally beginning to learn that cockroaches are bad in anybody’s house and will start treating this president at least as harshly as the last. Also, some congressmen, Republicans and Democrats, could stand to have some fire put to them. The press needs to do its job and not just selectively. Quit worrying about whether they will give you a big scoop or invite you to parties and start roasting the bastards.

Reply
Frank Pytel July 23, 2013 at 10:15 am

Well said.

Reply
YallCalmDown July 23, 2013 at 10:26 am

This should apply to both the liberal and the conservative media. The conservative media coddled the Bushes and Reagan like the lib media has coddled Clinton and Obama. And each side attacked the administration it was opposed to. It’s rare to find a truly objective publication/reporter. The few who are without bias should do their jobs, and they should be protected from an overzealous govt by the First Amendment as they expose the truth.

Reply
EJB July 23, 2013 at 12:13 pm

All slippery slopes start out very gradually then get steeper until the slope is nearly vertical. While all media may not have attacked Reagan zealously the majority of them did. Iran/Contra is one issue I remember the media being particularly visceral about. If the present day media had run down Benghazi half as much as they had Iran/Contra 0bama would be in much more trouble than he currently is and I would rate Iran/Contra a lower level issue than Benghazi.

Reply
EJB July 23, 2013 at 10:14 am

The press is reaping what it has sown and complains they get radishes rather than corn.

I agree this is wrong but they didn’t start going wrong yesterday, this administration has behaved badly from the start, look at all the Czars that 0bama uses to bypass congressional approval of cabinet secretaries (want to guess who actually calls the shots, the secretary or the czar?). The press has sheltered this president and his administration and party since the campaign of 2008 and is now pissed because wolves do eat even those that help them.

Ms. Lazenby, I agree with you whole heartedly and I would hope that the press is finally beginning to learn that cockroaches are bad in anybody’s house and will start treating this president at least as harshly as the last. Also, some congressmen, Republicans and Democrats, could stand to have some fire put to them. The press needs to do its job and not just selectively. Quit worrying about whether they will give you a big scoop or invite you to parties and start roasting the bastards.

Reply
Frank Pytel July 23, 2013 at 10:15 am

Well said.

Reply
YallCalmDown July 23, 2013 at 10:26 am

This should apply to both the liberal and the conservative media. The conservative media coddled the Bushes and Reagan like the lib media has coddled Clinton and Obama. And each side attacked the administration it was opposed to. It’s rare to find a truly objective publication/reporter. The few who are without bias should do their jobs, and they should be protected from an overzealous govt by the First Amendment as they expose the truth.

Reply
EJB July 23, 2013 at 12:13 pm

All slippery slopes start out very gradually then get steeper until the slope is nearly vertical. While all media may not have attacked Reagan zealously the majority of them did. Iran/Contra is one issue I remember the media being particularly visceral about. If the present day media had run down Benghazi half as much as they had Iran/Contra 0bama would be in much more trouble than he currently is and I would rate Iran/Contra a lower level issue than Benghazi.

Reply
Frank Pytel July 23, 2013 at 10:40 am

How can you tell the difference between a news report and a magazine story?

A news report will have no more than 3 adjectives. All adjectives are descriptive of size, colors or shapes. The adjectives never imply the invective of the person quoted in the report, or has no quotes in the report at all. The report never encompasses more than 3 paragraphs or 15 seconds, whichever comes first.

Reply
Frank Pytel July 23, 2013 at 10:40 am

How can you tell the difference between a news report and a magazine story?

A news report will have no more than 3 adjectives. All adjectives are descriptive of size, colors or shapes. The adjectives never imply the invective of the person quoted in the report, or has no quotes in the report at all. The report never encompasses more than 3 paragraphs or 15 seconds, whichever comes first.

Reply
major major July 23, 2013 at 10:41 am

Chicago Tribune reporter James Rasen must be sweating bullets right now.

Reply
major major July 23, 2013 at 10:41 am

Chicago Tribune reporter James Rasen must be sweating bullets right now.

Reply
JC July 23, 2013 at 11:02 am

“In Dr. Johnson’s famous dictionary patriotism is defined as the last resort of a scoundrel. With all due respect to an enlightened but inferior lexicographer, I beg to submit that it is the first.” Ambrose Bierce’s quote rings true more today than ever. It seems all one must do is utter the words “national security” and any emergency or exigent power may be granted. We no longer live by law it seems, but by emergency decree based on the sensationalistic ramblings of the Washington elite. Half the press is in bed with the DC elite, and Republicans and Democrats alike are doing their best to ensure that the other half, the Glenn Greenwald’s, the Jeremy Scahill’s, the Michael Hastings, the Wikileaks, those that actually serve as a watchdog to government corruption, are either dead or facing prison.

Reply
JC July 23, 2013 at 11:02 am

“In Dr. Johnson’s famous dictionary patriotism is defined as the last resort of a scoundrel. With all due respect to an enlightened but inferior lexicographer, I beg to submit that it is the first.” Ambrose Bierce’s quote rings true more today than ever. It seems all one must do is utter the words “national security” and any emergency or exigent power may be granted. We no longer live by law it seems, but by emergency decree based on the sensationalistic ramblings of the Washington elite. Half the press is in bed with the DC elite, and Republicans and Democrats alike are doing their best to ensure that the other half, the Glenn Greenwald’s, the Jeremy Scahill’s, the Michael Hastings, the Wikileaks, those that actually serve as a watchdog to government corruption, are either dead or facing prison.

Reply

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