The part of the First Amendment that prohibits "abridging the freedom " of the press" is now up against the wall, as the Obama administration continues to assault the kind of journalism that can expose government secrets.
Last Friday the administration got what it wanted -- an ice-cold chilling effect -- from the Fourth Circuit Court of Appeals, which ruled on the case of New York Times reporter James Risen. The court " delivered a blow to investigative journalism in America by ruling that reporters have no First Amendment protection that would safeguard the confidentiality of their sources in the event of a criminal trial," the Guardian reported.
The Executive Branch fought for that ruling -- and is now celebrating."We agree with the decision," said a Justice Department spokesman. "We are examining the next steps in the prosecution of this case." The Risen case, and potentially many others, are now under the ominous shadow of the Appeals Court's pronouncement: " There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify " in criminal proceedings."
At the Freedom of the Press Foundation, co-founder Trevor Timm calls the court ruling "the most significant reporter's privilege decision in decades" and asserts that the court "eviscerated that privilege." He's not exaggerating. Press freedom is at stake.
Journalists who can be compelled to violate the confidentiality of their sources, or otherwise go to prison, are reduced to doing little more than providing stenographic services to pass along the official story. That's what the White House wants.
The federal Fourth Circuit covers the geographical area where most of the U.S. government's intelligence, surveillance and top-level military agencies -- including the NSA and CIA -- are headquartered. The ruling "pretty much guts national security journalism in the states in which it matters," Marcy Wheeler writes.
That court decision came seven days after the Justice Department released its "News Media Policies" report announcing "significant revisions to the Department's policies regarding investigations that involve members of the news media." The report offered assurances that "members of the news media will not be subject to prosecution based solely on newsgathering activities." (Hey thanks!) But the document quickly added that the government will take such action "as a last resort" when seeking information that is "essential to a successful investigation or prosecution."
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