Freedom of the press is never ‘case by case’

If the US is to remain committed to press freedom, ‘reporter's privilege’ must be extended to all.

The US Supreme Court recently declined to hear the case of New York Times national-security reporter James Risen. Risen, a Pulitzer Prize-winning reporter, is steadfastly refusing to reveal a source for information in his 2006 book, State of War: The Secret History of the CIA and the Bush Administration. US federal prosecutors claim that the information came from former CIA agent Jeffrey A Sterling, and they want Risen to testify in Sterling’s case. The information in question provided details of an alleged CIA plan to sabotage the Iranian nuclear programme. Risen has stated repeatedly that he would rather face jail time than reveal his sources. 

The case has worked its way through the lower courts in the US and Risen has been subpoenaed repeatedly since 2008, each time refusing to testify. When the case reached the US Court of Appeals in 2013, the judges voted two-to-one that the First Amendment provided no protection to a journalist in this type of case. In declining to hear the case, the Supreme Court has effectively endorsed the decision of the Court of Appeals. The Obama administration now has to make a decision on whether to imprison Risen for contempt of court or drop the subpoena.

To understand this ruling, and the historical context of ‘reporter’s privilege’ as it relates to the First Amendment, we need to look at the precedent set in the 1972 case, Branzburg v Hayes. In this case, a local Kentucky reporter (Paul Branzburg) had reported on the illegal activities of some local youths who were manufacturing hashish. The Kentucky authorities demanded to know the names of the budding chemists. After refusing to disclose the names, Branzburg’s case made its way to the Supreme Court where, in a five-to-four majority decision, the justices found that the First Amendment did not protect reporters or the press from testifying in criminal proceedings. Justice Powell, one of the five majority justices who ruled against Branzburg, stated at the time that judges must balance the freedom of the press against the need for testimony in criminal matters on a ‘case by case basis’. Powell’s interjection led some to hail the justices’ vote as four-one-four; in the absence of a majority on the general legal position, it didn’t set a definitive precedent. This meant that a level of discretion has been used in similar cases ever since.

Risen’s case is not unique. According to the US Society of Professional Journalists, in 2006 alone, state, local and federal government issued around 8,000 subpoenas to journalists to testify in criminal proceedings. Many were jailed for refusing to reveal their sources. This has led to widespread calls for so called ‘shield laws’, which already exist in most US states and provide reporter’s privilege through state statute. A shield law instituted on a federal level may now be on the cards: the proposed Free Flow of Information Act 2013, which is currently in Congress, would provide protection for so-called ‘covered persons’ from government subpoenas if it is voted through.

But here we come to the crux of the issue. The term ‘covered persons’, in this instance, is difficult to define. Loosely speaking, the term, as used in the bill, describes a professional journalist. But deciding what constitutes a ‘proper journalist’ is not straightforward. No doubt, Pulitzer Prize winner Risen would meet the criteria, but what about reporters in the tabloid press who spend their time focusing on salacious celebrity gossip? What about the amateur hack who uncovers a big local story and makes the headlines? The debate over reporter’s privilege raises some familiar questions that have been raised in relation to press freedom. As the UK saw during the Leveson Inquiry, what constitutes proper journalism, in the ‘public interest’, is never quite clear. The criteria, more often than not, seem to be what right-minded, respectable figures like Lord Justice Leveson and his cheerleaders in the liberal-left press think is respectable.

Of course, the elites of the liberal media, those sitting in the offices of the Guardian and the New York Times, support the need for extended protection for their journalists, but if we journalists are to achieve true freedom then that protection needs to extend to all. When the First Amendment was written, the privileges afforded by it would have extended from the large print presses of New York City and Washington DC down to the lowly pamphleteer handing out his message on the street. Such privileges were in direct response to the stifling press rules implemented in Europe over the previous two centuries. Today, the lowly pamphleteer is replaced by the blogger or the small-town tabloid hack, but the need to protect his or her right to write and publish freely is just as important.

It is no coincidence that the First Amendment of the US Constitution combines the freedom of the press with freedom of speech. The two are inextricably linked. The very foundation of what promotes a healthy and free society relies on our ability to think, say and print what we want without fear of being locked up. That principle is based on our trust in the rational abilities of our peers to sort out the nonsense from what is important. If we are going to maintain that trust, journalists need to fight for their right to dish the dirt on everything and everyone, from the salacious spreads of the tabloid press to James Risen’s exposé on the CIA. Freedom of the press cannot be doled out on a ‘case-by-case basis’.

Neil Ross is a writer based in New York.

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