Earlier this year, Reporters Without Borders released their annual Press Freedom Index, which measures each country’s behavior towards journalists based on a range of criteria, from legislation to violence against journalists. Last year’s report saw the U.S drop precipitously after the negative treatment of journalists who were covering the Occupy Wall Street protests in 2011 and its criminal investigation of Army Prvt. Chelsea Manning (then known as Bradley Manning) for her involvement in the release of diplomatic cables to Julian Assange and Wikileaks. This year, the U.S climbed 15 places to 32nd, a cause for celebration for the Obama Administration, which has been notorious for prosecuting government whistleblowers under the Espionage Act of 1917–more than double than any other administration combined.
But expect to see the “Land of the First Amendment” drop once again in the rankings in 2014. Just this year, the Obama Administration was involved in a myriad of scandals related to its “war on leaks.” Also, Congress has been staging a legislative effort to narrow the definition of journalism to keep so called “unauthorized disclosures” to a minimum.
Obama’s “war on leaks”
The New York Times reported that investigations of news organizations are not unusual, but that “Justice Department regulations call for subpoenas for journalists’ phone records to be undertaken as a last resort and narrowly focused, subject to the attorney general’s personal sign-off.” Those regulations require that news organizations be notified and given a chance to challenge the subpoena in court, something the Associated Press was not granted.
After printing a story on a Yemeni terror plot similar to that of the “underwear bomber” being foiled by the CIA in 2012, the D.O.J secretly seized “thousands upon thousands of news gathering calls” by more than 100 AP journalists using business, mobile, and even home homes, even though the story involved only five AP reporters and an editor. The next day, a coalition of 50 American news media organizations joined the Reporters Committee for the Freedom of the Press in a protest letter to Attorney General Eric Holder, accusing the Justice Department of ignoring “almost every aspect” of its own guidelines governing subpoenas of journalists and news organizations.
The investigation of James Rosen, for a 2009 story on North Korea’s nuclear tests in defiance of new UN sanctions, extended far beyond what was done to AP reporters. The FBI affidavit, in support of the D.O.J’s successful federal court application for the secret subpoenas, stated that “there is probably cause to believe that the reporter has committed or is committing a violation” of the Espionage Act and accused him of being “at the very least, either as an aider, abettor, and/or co-conspirator” in seeking and accepting information from State Department adviser Stephen Kim. The information pertaining to the secret subpoena was not released until this year. The records showed that the Justice Department sought approval from federal courts to avoid Rosen and Fox News about the subpoena in order to continue monitoring Rosen’s e-mails for other contacts with government officials.
Media outlets like the USA Today have criticized the Justice Department’s probes of news organizations and their potentially confidential sources, calling it a “startling expansion of the war on leaks by this administration.” Free press advocates are becoming convinced that secret subpoenas and the monitoring of personal communications are less about deterring leakers and more about intimidating the press.
White House policy regarding potential leakers is also being exposed. The National Insider Threat Policy is a presidential memorandum issued on November 21, 2012, that instructs all federal departments and agencies to set up Insider Threat programs to monitor employers with access to classified information and prevent “unauthorized disclosures.” A survey of government departments and agencies by McClatchy newspapers revealed that some agencies are using the program to “pursue unauthorized disclosures of any information, not just classified material.” According to its report, “millions of federal employees and contractors must watch for ‘high-risk persons or behaviors’ among co-workers and could face penalties, including criminal charges for failing to report them. Leaks to the media are equated with espionage.”
As a result, the press’ ability to gather information seems to be taking a toll. A recently released report by the Committee to Protect Journalists criticizes the Obama Administration’s handling of the press in regards to leak investigations and the general lack of transparency. According to the report, government officials have become increasingly reluctant to talk to the press, even to discuss unclassified information “because they fear that leak investigations and government surveillance make it more difficult for reporters to protect them as sources.”
Congress’ attack on journalism
The House bill defines a “covered person” as “a person who, for financial gain or livelihood, is engaged in journalism and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person” (emphasis added). Similar language in the Senate bill further defines a journalist as someone who “regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes” on “local, national, or international events or other matters of public interest” (emphasis added).
Both definitions arguably exclude bloggers, freelance writers, and other non-salaried individuals, members of the press that may need First Amendment protections the most. Sen. Dianne Feinstein (D-CA) made this the focal point of the Senate version of the bill, reportedly stating, “”I can’t support it if everyone who has a blog has a special privilege … or if Edward Snowden were to sit down and write this stuff, he would have a privilege. I’m not going to go there.”
The result of such exclusion can be seen in the case of Oregon-based self-proclaimed “investigative blogger” Crystal Cox, who was involved in a $10 million lawsuit for defamation after writing blog posts criticizing investment firm Obsidian Finance group and its co-founder Kevin Padrick. Representing herself, Cox argued that her writing was a mixture of facts, commentary, and opinion and moved to have the case dismissed.
Though the case was not dismissed, U.S District Judge Marco Hernandez threw out virtually every post cited by Obsidian except for one, which he ruled as being defamatory because it was presented as factual in her tone. Cox then defended her article, saying that it is factual in nature because it relies on an insider source, but that she is protected by Oregon’s media shield laws against revealing her source. The Oregonian law reads as follows:
No person connected with, employed by or engaged in any medium of communication to the public shall be required by … a judicial officer … to disclose, by subpoena or otherwise … [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public[.] (emphasis added)
However, because Cox is not employed by an official news organization, the judge ruled that she is not protected by the law from revealing her source and by refusing to do so, she cannot prove that the post was not defamatory and was subsequently forced to pay $2.5 million to the investment firm.
From the opinion of Judge Hernandez:
. . . although defendant is a self-proclaimed “investigative blogger” and defines herself as “media,” the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law.
Journalists of targeted media platforms should expect to see similar legal treatment in the event the more explicit federal shield laws are passed and signed into law. And there is reason to believe that such legislation could be passed with a bipartisan majority. Democrats and Republicans, with the exception of fringe elements on both sides, have pushed the narrative that disclosures of classified information similar to that of Edward Snowden to the Guardian are dangerous to national security, and so there needs to be a more narrow scope of who in the media can be considered a journalist and can therefore be entitled to First Amendment protections.
And the propaganda has been pushed by some in the mainstream media. The most egregious example is the Guardian reporter and columnist Glenn Greenwald’s interview with David Gregory on Meet The Press, where Gregory suggested that Greenwald be prosecuted for helping Snowden release classified documents on the NSA’s mass surveillance apparatus.
What it all means
Washington’s behavior towards journalists is more than enough to have the U.S drop in the Press Freedom Index. There are other reasons to build upon it, like the media blackouts on oil spills in the Midwest imposed by oil companies like Exxon Mobil.
If being 32nd in press freedom does not concern people about the state of the American press, then perhaps next year’s rankings will be a wake-up call. Whether pundits and citizens want to admit it or not, the idea of “freedom of the press” is eroding as legislators and the White House push to divulge vital information from public knowledge by intimidating journalists and potential sources through illegal seizures and the resurrection of legislation aimed at facilitating the sharing of information between companies and the government.
The U.S may soon go the way of other so called free speech havens. Israel has dropped 20 places to 112th due to the military’s increasing hostility towards journalists in the Palestinian Territories. Japan, one of the bastions of press freedom in Asia, is now 53rd, down from 22nd last year because of the “lack of transparency and almost zero respect for access to information on subjects directly or indirectly related to Fukushima.”