Free press weather report: Cloudy with a severe 'chilling effect'

The White House and courts aggressively targeted journalists, whistle-blowers and leakers in 2013

President Barack Obama and his administration has had a contentious relationship with the press.
AP Photo/Charles Dharapak

A chill went through U.S. newsrooms in 2013, with federal authorities demanding access to reporters’ confidential contacts.

Investigative journalists argue that they can’t do their jobs unless they can tell certain sources that their identities will remain secret, or else future whistle-blowers will fear coming forward. And leakers have good reason to be afraid, with eight people either charged or imprisoned by the federal government over alleged leaks under the administration of President Barack Obama, more than any other in U.S. history.

The easiest way to find the source of a leak is to question the reporter who published it. When they refuse to name names under oath, reporters risk being jailed until they do. It's happened before.

Shield laws in most U.S. states prevent courts from compelling journalists to testify. But there’s no such law at the federal level, and state shield laws remain a confusing, conflicting patchwork, with some strong and some weak.

Shaky precedent

In December, Jana Winter, a Fox News reporter, won a hard-fought case against Colorado defense attorneys trying to get her to testify in the state’s case against James Holmes, the accused killer of 12 people at a movie theater in Aurora, Colo., in the summer of 2012.

Winter reported on the investigation just a few days after the attack, exposing, she said, how the suspected gunman had mailed a notebook to a University of Colorado psychiatrist detailing how he intended to kill.

“The parcel may have sat unopened in a mailroom for up to a week before its discovery Monday, a law enforcement source told FoxNews.com,” Winter wrote in July 2012. 

Holmes’ defense attorneys argued they needed to know who the source was.

By refusing to give up the name in sworn testimony, the judge in Colorado — which has a far weaker shield law than the reporter’s home state of New York — could have found Winter in contempt of court and sent her to jail.

Winter said naming her source would have ended her career as an investigative journalist.

"There was no way that I was ever going to give up these names," she told Fox News. "And if that meant me sitting in jail, then so be it. I wasn't going to give up my sources."

Ultimately, a New York court found that Colorado couldn’t compel a New York reporter to testify, upholding the state's “shield” law.

“What it means is that New York-based journalists will have the protections of New York’s shield laws if they leave the state and gather news elsewhere,” Winter told Buzzfeed after the ruling.

Despite the victory in court, Winter said the ordeal had damaged her ability to do her job and that the threat of legal action had scared off other sources she’d known for years.

“You say subpoena and people run away from you," she told Buzzfeed. "The chilling effect of a subpoena is no joke.”

Free press in peril?

The Associated Press wasn’t so fortunate in trying to keep its sources anonymous this year.

The Department of Justice secretly obtained troves of phone records belonging to AP reporters after the news agency refused to reveal a source for a May 2012 story about how the Central Intelligence Agency foiled an Al-Qaeda plot to blow up a U.S.-bound plane.

The records were obtained before the AP was informed of the secret subpoena that let the Justice Department grab the data.

“The AP phone records stuff, that was really terrible. It’s probably the most horrible thing that happened this year,” in terms of press freedom, said Dave Greene, an attorney for the Electronic Frontier Foundation, a digital civil liberties group.

In September, government prosecutors obtained a guilty plea over the leak from Donald John Sachtleben, a former FBI bomb technician. The DOJ said the phone records were central to tracking down who told the AP about the plot.

The U.S. Fourth Circuit Court, which covers parts of the mid-Atlantic, ordered James Risen, a Pulitzer Prize-winning New York Times reporter, to testify in a case against a CIA employee who allegedly leaked details about failed U.S. attempts to disrupt Iran’s nuclear program.

Still refusing to testify about the source for a chapter in his 2006 book, "State of War," Risen now hopes to take his case to the Supreme Court. Like Winter, Risen has said he’s ready to face prison.

“I am not discouraged at all, because I have actually been encouraged by the broad level of support that I have received,” Risen told the Times in October. “I think a lot of people now recognize the significance of this case. I will go to jail if necessary to keep up the fight.”

In its July ruling on the case, the Fourth Circuit Court said Risen was the only source of firsthand information about what the CIA employee, Jeffrey Sterling, may or may not have told Risen. 

“Risen is the only eyewitness to the crime. He is inextricably involved in it. Without him, the alleged crime would not have occurred, since he was the recipient of illegally-disclosed, classified information,” the ruling states.

But a dissenting opinion to the ruling slammed the majority’s conclusion, saying it allows too broad an interpretation of what right the government has to compel reporters to testify.

In it Chief Judge William B. Traxler 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. The First Amendment was designed to counteract the very result the majority reaches today.”

The seizure of AP phone records and Risen’s case showed the government’s determination to skirt reporters’ public-interest claim to keep sources anonymous.

And thanks to Edward Snowden’s revelations of National Security Agency cyber spying, reporters and sources know Uncle Sam can hover over their shoulders whenever he wants.

“NSA spying has a very worrying chilling effect on the exchange of information,” said Delphine Halgand, U.S. director of Reporters Without Borders.

Federal protection needed

In the wake of the Obama administration’s aggressive prosecutions of leakers and subpoenas of reporters, journalist groups are calling for a federal shield law.

“I believe a federal shield law is needed — to provide a uniform national protection for sources and the journalists who work with them,” said Sonny Albarado, an editor at the Arkansas Democrat-Gazette and former president of the Society of Professional Journalists.  

Big media companies are also throwing their lobbying weight behind new laws.

But Albarado said it is unlikely the legislation to establish a shield law, which is sitting in the Senate, will advance anytime soon.

The language in a potential federal shield law is crucial, especially as the lines between traditional and non-traditional reporting blur.

The question is whether a federal shield law applies only to journalists at outlets such as The New York Times or if it also applies to Joe Q. Blogger. In the legislation being kicked around Capitol Hill, that distinction isn’t completely clear.

“A federal shield law should protect all those who gather information with the intent to disseminate it to the public,” EFF's Greene said.

What EFF likes about the current bill now stalled in committee is it doesn’t explicitly attempt to define who is or is not a reporter. But the bad news is that that distinction is now up for judges to decide. EFF's position is that it would like to see national security exceptions for the shield law removed.

David Cullier, current president of the SPJ, said the federal shield law should apply to bloggers who are “committing acts of journalism.”

“Heck, I think any citizen should get shield law protections if he or she is doing journalism,” he added. “The focus on defining ‘journalist’ is really tricky. I prefer to focus on the definition of ‘journalism,’ and anyone doing journalism should be protected."

“You don't need a license to do journalism, or to call yourself a journalist. You just need to go out and do it — gather information for the public's benefit, verify it, seek the truth, disseminate it.”

Reporters without Borders, which also supports a federal law protecting reporters, moved the U.S. up its annual ranking of countries in terms of press freedom in its latest report. In 2012, it placed 32nd, up from 47th in the previous year.

But Halgand said the atmosphere for reporters worsened during 2013.

“The index 2013 was published in January 2013, reflecting what happened in 2012. The index 2014 will be published on Feb. 12, 2014, and it is more than likely that the U.S. will lose some points,” he said, reflecting a strained year of government-media relations.

On Friday before Christmas, a reporter asked Obama about his resolution for 2014. The answer he gave got chuckles from the assembled crowd of journalists.

“My new year’s resolution is to be nicer to the White House Press Corps,” the president said.

It's likely many White House reporters think removing the threat of jail for journalism would make for a good start.

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