The full fury of the press corps has recently been directed towards the Obama administration and their investigations into two leaks – one looking into an AP story on a foiled terrorist plot, and the other, a Fox News story on North Korean nuclear tests. The two Department of Justice probes, while similar in scope, differed in justification. Investigators explained combing through AP phone records as an attempt to identify a leak in the administration. The search warrant application for Fox News’ James Rosen’s email account, however, was based on the grounds that the contents of Rosen’s email contained evidence of a crime and illegally possessed information that was intended for use in committing a crime.
Outrage from members of the fourth estate was immediate and justified. The New York Times and Washington Post ran scathing editorials criticizing the basic premise of the Rosen investigation: journalists are committing a crime when they receive or publish leaked information.
Reporters have generally been operating under the assumption that their first amendment rights protect them from government interference in their affairs. However, the legal justification for this assumption is far from clear.
Bruce Brown, the executive director of the Reporters Committee for Freedom of the Press – a legal advocacy group for first amendment rights – issued a statement noting the “time-honored understandings between the public and the government about the role of the free press.” The problem with this statement is rapidly becoming clear; understandings and assumptions do not constitute legal precedent.
Legal decisions on the matter present an interesting contradiction. On one hand, the courts have concluded that reporters do not have absolute immunity from subpoenas, and can be forced to testify in regards to their sources – a decision that was widely publicized when two reporters were sentenced to jail time in conjunction with the Valerie Plame leak. The reporters involved in the recent leak investigations were not, however, subpoenaed to testify on the identities of their sources, and as such these decisions do not have direct relevance.
On the other hand, in a 1971 Supreme Court case prosecuted by the Nixon Administration – an administration that, much like the Obama administration, often found itself mired in scandal – Justices concluded that reporters may publish confidential documents unless the government can prove that the release of such information would “inevitably, directly, and immediately” imperil the safety of the Republic or her citizens (Justices Black and Brennan, New York Times Co. v. United States). Clearly, neither the AP report on a thwarted terrorist attack, nor the Fox News report on possible North Korean nuclear tests presents an inevitable threat to the United States.
The administration, admittedly, made no attempts to censor the articles. However, inherent in the Supreme Court’s decision is the understanding that if reporters are allowed to publish classified material, they are also allowed to possess classified material that has been leaked to them.
The issue with these two investigations is the justification the Department of Justice used for their record seizures. The DOJ concluded that when Fox News reporter James Rosen published classified information, he committed an act that was akin to aiding and abetting the criminal act of leaking classified documents — a decision that, if allowed to stand, represents an incredibly dangerous precedent.
Investigative journalism’s value lies solely in the ability of reporters to speak to sources without fear of legal repercussions. Should this ability be revoked, the usefulness of the press would be significantly limited.
The administration has repeatedly defended the Department of Justice’s actions. Officials cite the need to balance national security with the freedom of the press, and point out that none of the journalists have been charged in connection with the case. Nevertheless, the premise that reporting a story may be a criminal act, and one that could lead to future charges, must not go unchallenged.
A recent commentary, penned by an Obama administration official, took the defense of the DOJ. in a bizarre new direction. The unnamed official made the case that a reporter soliciting information was akin to “pay[ing] someone to break into [Justin] Bieber’s house to steal [his] diary.” This argument is not only ridiculous, but is also entirely off-point. No one was hired to steal documents; rather, reporters found sources who were willing to leak information.
The news today already consists of far too much analysis and opinion. Criminalizing the actions of the few reporters who generate original content presents far more of an “inevitable, direct, and immediate” danger to the country than a few, low level, leaks.