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Fifty years ago this month, the United States Supreme Court handed down one of its most celebrated decisions, New York Times v. Sullivan. The decision ranks as one of the most profound defenses of a free press under the First Amendment. In its unanimous decision, the Court referred to growing threats against the media and the need to sharply limit liability for journalists to allow them to perform their role in our constitutional system. Those threats in 1964 however now seem almost quaint in comparison to those faced in 2014 by American media.
The New York Times v. Sullivan decision, and its progeny, was a major reason why the United States was once viewed as the world’s leading protector of press freedom. Now fifty years later, the United States is viewed as a growing menace to press freedom. In this year’s World Press Freedom Index by the respected Reporters Without Borders organization, the United States ranked forty-sixth in the world. The drop of 13 is tied directly to anti-media policies and practices under President Obama. It leaves the United States behind the former Soviet republics of Lithuania and Latvia as well as Romania, Poland and Czechoslovakia (both the Czech Republic and Slovakia), Ghana, South Africa and El Salvador.
Brennan saw civil liability as creating a chilling effect on reporters and their companies, resulting in self-censorship that is just as stifling as direct censorship. Imposing a high standard for proof of defamation, Brennan sought to give the free press “breathing space” to carry out its key function in our system. In his concurrence, Hugo Black stated: “The half-million-dollar verdict does give dramatic proof . . . that state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials. The factual background of this case emphasizes the imminence and enormity of that threat.”
What the Court described as an imminent and enormous threat to the free press in 1964 pales in comparison to the threats presented in 2014. American media is facing both direct and indirect threats that threaten the entire industry.
Criminal liability
Journalists have found themselves increasingly under threat of criminal charges and surveillance. While courts were highly sympathetic to the media in reporting on civil rights, that sympathy has evaporated when the subject of reports went from figures like Bull Connor to Bin Laden. Both the Bush and Obama Administrations insisted that there is no distinction between journalists and other people who receive classified information for the purposes of criminal charges. The media revealed a couple years ago that the Obama Administration had placed various Associated Press reporters in various offices under surveillance around the country. They were not alone. Later investigative reports by the media found that the Obama Administration targeted Fox News correspondent James Rosen in another story involving leaked classified information. In the 2010 application for a secret warrant, the Obama Administration named Rosen as “an aider and abettor and/or co-conspirator” to the leaking of classified materials. Not only were his communications surveilled but so were his parents.
If that seems perfectly Nixonian, it is actually perfectly Obamian. While Richard Nixon was denounced for using the Espionage Act of 1917 to target journalists and whistleblowers, Obama has brought twice the number of such prosecutions of all prior presidents under the Act. The Obama Administration has pursued whistleblowers with unparalleled investigations and animus. At the same time, it has treated Julian Assange, who published the famous Wikileaks documents, as a criminal as opposed to either a journalist or a whistleblower. The Administration secured a 35-year jail term against Private Bradley Manning as the WikiLeaks source and Assange remains holed up in an embassy in London in fear of extradition by the United States. Assange’s self-exile seems to serve some government officials as a warning to other publishers of what will happen if they disclose such embarrassing material.
Likewise, Edward Snowden revealed a range of abuses in his later disclosures that triggered two task force investigations and a series of proposed reforms. Yet, the Administration has declared him to be a criminal while other nations herald him as a hero. The Administration also seeking an absurd 105-year sentence against freelance journalist Barrett Brown for working with hacktivist collective Anonymous and linking to hacked emails and other leaked information concerning the inner workings of the American security agencies.
Celebrated stories like the Pentagon Papers were based on classified documents disclosed by whistleblowers and published by the media. Most whistleblower cases involve such information since the government tends to classify things that it does not want the public to know, including embarrassing or abusive policies. Under its current policies, Obama would be prosecuting Daniel Ellsberg who was the celebrated whistleblower from the Nixon period.
Civil Liability
At one time, virtually every local news organization had investigative units that went under cover to expose abuses or corruption. Then, in 1997, the federal appellate court in Virginia handed down a ruling against ABC in a case involving the Food Lion grocery chain. The store had sued after an undercover story revealed horrifying unsanitary practices by Food Lion in the handling of meat. While the Fourth Circuit reduced damages from $5.5 million for trespass and misrepresenting reporters as employees, it still held that the media was not protected anymore than ordinary citizens in committing fraud or trespass. The result was widespread changes in the elimination or curtailment of the work of such units long credited with exposing abuses in areas ranging from nursing homes to businesses to prisons.
Reporters are also still facing prison for protecting confidentiality. While 49 states have so-called “press shield” laws protecting reporters from having to disclose confidential sources before grand juries, Congress has resisted such protections for decades. Recently, the incarceration of reporters led to renewed demands for such protection. However, under pressure from politicians like Senator Dianne Feinstein, Congress used the water-downed law to actually limit protections by excluding the growing numbers of “new media” members like bloggers from any protection. Those reporters just happen to have been key in disclosing abuses that Feinstein’s own Senate Intelligence Committee failed to disclose. The key to this new definition is whether the individual makes sufficient salary as a journalist – not whether he or she is performing a journalistic function. With the number of salaried journalists falling, it is a standard that guarantees a shrinking level of protection from government coercion.
Free Press vesus Free Speech
These criminal and civil threats are mounting at a time when the media is facing worsening market pressures posed by the Internet. Circulation numbers are dropping as people go digital for their news. With that drop, ad revenues are falling. The result is the steady closing of newspapers and magazines. The result is that media companies are more timid than ever in dealing with the threat of costly civil liability and litigation. With greatly reduced revenue, the threat of such costs and damages are greatly enhanced for companies with a thinning profit margin. The government and private litigants are fully aware of that vulnerability and exploit it.
Since 1964, courts have proven generally hostile to claims of journalistic principles and rights. Greater protections are now found under freedom of speech as opposed to the freedom of the press. Indeed, the trend appears to be subsuming the rights of journalists under free speech – losing the unique function (and protections) accorded journalists. As with the Feinstein approach to shield laws, this will further reduce reporters to simply citizens with a larger audience or readership. The free press clause will be largely superfluous. What was most powerful about New York Times v. Sullivan was the articulation of a distinct role – and the need for distinct protections – for journalists. Federal courts have steadily eroded that distinction in areas ranging from confidentiality to trespass to possession of classified material. While acknowledging the unique function of reporters, judges routinely deny them any enhanced or distinct protections from other citizens.
Ironically, we are living through one of the most inspiring periods for journalism. Neither the Courts nor Congress forced disclosure of policies ranging from torture programs, expanding warrantless surveillance systems, secret prisons, unilateral “kill list” orders targeting citizens, and other abuses. Indeed, the legislative and judicial branches effectively played critical roles in concealing these policies. They were revealed by a free media by reporters under direct threats from both the Bush and Obama Administrations. Leading journalists have revealed shocking practices and policies buried with the acquiescence of congressional leaders.
Congress needs to look comprehensively at this growing problem and a dying American media. In addition to strengthening criminal and civil protections for the media, we need to consider tax and loans packages to sustain media organizations, including new models for non-for-profit status for such organizations. Our free press has often been the one institution that stood between citizens and government abuse. It is now time we, the beneficiaries of the free press, directly support the Fourth Estate to guarantee that it will offer these same protections to future generations. It will take the public to force such changes. Politicians have a love/hate relationship with the press. They love media coverage but loathe media scrutiny.
If citizens have forgotten the vital burden (and faith) placed on the media by the Framers, they need simply to look around them. Our political system is experiencing widespread and endemic failure. Both the Judicial and Legislative branches have become increasing passive in the face of growing power exercised in the Executive Branch. The only moving part still functioning well in this system is the free press. If this trend is not changed, it is only a matter of time before criminal and civil liability brings even that final safeguard to a grinding halt. When that happens, the government will have achieved the dream of a citizenry left in blissful ignorance: reading only what the government itself releases for public consumption. The question is whether in another 50 years citizens will even recognize the type of journalism celebrated in New York Times v. Sullivan.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of the Board of Contributors of USA Today.