Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

There has been a large volume of discussion on this blog concerning the loss of our personal liberties and constitutional freedoms.  One of the most important of those “freedoms” that seem to be at risk is the Freedom of the Press, especially in light of recent events.

“Following the amendment of a long-standing U.S. law, people in this country will now be exposed to news which is produced by the U.S. government.  On Jul. 2, a change to the U.S. Information and Educational Exchange Act, also known as the Smith-Mundt Act, came into effect, reversing a ban on the State Department and U.S. international broadcasting agencies which had prevented them from disseminating their program materials within U.S. borders.  The Broadcasting Board of Governors (BBG), the U.S. federal government agency which oversees all U.S. government-supported media internationally, notes that individuals residing in the U.S. will now have access to vast amounts of new information.” Nation of Change

While we have had access to these Government funded and produced media sources on the internet, media companies will now be able to access these government produced stories and promulgate them to the public at large here in the States.  In light of the aforementioned announcement from the Broadcasting Board of Governors and  a Fourth Circuit Court of Appeals decision that came down this week, I am concerned that the Freedom of the Press is now officially on life support.

“In a two-to-one ruling from the fourth circuit appeals court in Richmond, Virginia, two judges ruled that a New York Times reporter, James Risen, must give evidence at the criminal trial of a former CIA agent who is being prosecuted for unauthorised leaking of state secrets.  The ruling, written by chief judge William Traxler, states in stark terms that even when a reporter has promised confidentiality to a source, “there is no first amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify … in criminal proceedings”.’  Guardian

Is it just me or does that language from the Fourth Circuit effectively end the ability of reporters to investigate any governmental wrong doing when the dissemination of that information could be prosecuted in criminal court?  If I was a cynical man, I would think that this decision sent a shot across the bow of reporters desks everywhere.  Didn’t the Department of Justice just announce new guidelines in an attempt to protect the rights of journalists?  Were those new guidelines part of the judicial record for the Fourth Circuit?

“The timing of the appeal court ruling is ironic as it comes just days after the new Justice Department guidelines were published. Those guidelines were drawn up at the request of President Obama following the controversy over surveillance of the phone lines of Associated Press.  They emphasised that the Obama administration wished to strike “the appropriate balance between two vital interests: protecting the American people by pursuing those who violate their oaths through unlawful disclosures of information and safeguarding the essential role of a free press in fostering government accountability in an open society.”

Only hours before the appeal court issued its harsh judgment, Risen’s lawyers filed a letter to the court urging the judges to take on board the new DoJ guidelines as evidence of the government’s desire to recognise a federal common law privilege for reporters.”  Guardian 

It is also interesting that the alleged criminal leaks happened during the George W. Bush administration and Risen’s book, State of War: The Secret History of the C.I.A. and the Bush Administration, was published in January of 2006.  Sterling was not indicted until December 22nd, 2010.  Was the indictment timing related to any possible statute of limitations expiring?  Why wasn’t Mr. Sterling brought in front of the Grand Jury during the the Bush Administration?

According to the decision, Mr. Sterling was brought in front of a Grand Jury in 2008, during the Bush Administration and a District court affirmed Mr. Risen’s reporter privilege, but the court also claimed that there was a partial waiver of the privilege since Mr. Sterling’s name was used and sent the case back to the Grand Jury, but the Grand Jury expired before Risen’s and the government’s motions for reconsideration could be dealt with.

Needless to say, the Obama Department of Justice brought the matter to a new Grand Jury and motions for reconsideration were dealt with and the District court stated that Mr. Risen had a qualified reporters privilege because the Government had not met the three prong test discussed in another Fourth Circuit case, LaRouche v. National Broadcasting Co., 780 F.2d 1134 (4th Cir. 1986). LaRouche  

As expected, after the Fourth Circuit’s decision, claims of a chilling effect on the press have been made by many media sources.  “Stephen Engelberg, the editor-in-chief of the investigative website ProPublica, said the ruling was “extremely unfortunate given the criminalisation under this government of officials talking to reporters”. He said it underlined the need for a federal shield law that would extend protections to journalists in line with similar safeguards that already exist in many states.

Lucy Dalglish, co-chair of the First Amendment Committee of the American Society of News Editors, said the decision would add to the chill that was rapidly taking hold in America as a result of the aggressive pursuit of leakers by the Obama administration. “It has really got bad, and not just in national security reporting. Every official now knows that if they talk to a reporter they are potentially in a world of hurt.” ‘  Readersupportednews

While the Fourth Circuit court stated that the United States Supreme Court in its Branzburg v. Hayes decision had struck down any reporters privilege, the Branzburg case was a criminal case involving illegal drugs, and in my mind is hardly comparable to a case where alleged government abuse and possible illegality was in question.  Branzburg 

Did the Fourth Circuit put a nail in the coffin of journalism or did it just “remind” journalists that Big Brother is watching and if the government wants the information from you, you had better open up your files or get ready to go to jail?  Were the new guidelines that were just issued by the Attorney General Holder a ruse to quiet down the unruly journalists who were getting caught up in the government’s ruthless War on Whistleblowers?

Will any Whistleblowers ever come forward again if the reporters that they talk to can be forced to disclose their source? In my opinion, the Sterling decision highlighted here is an example why sources like WikiLeaks are critical to the public being able to actually find out what our government is or is not doing on our behalf.

If the Obama administration was truly interested in opening its books and allowing the American public the right to review what goes on behind closed doors, wouldn’t it help the cause to allow for a limited reporters privilege in government whistleblower cases?  With the Sterling decision arguably damaging the ability of reporters to have secret sources and now that government produced and sourced “news” can be interjected into our domestic media, will we even need a freedom of the press anymore?

What do you think?

Additional Sources:   United States V. Sterling