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Does it matter that the press is under siege?
Inside the First Amendment

By Paul K. McMasters
First Amendment Center ombudsman
06.18.06

Many of us view the increasingly intense struggle between the press and the government with a strange mix of fascination and detachment. We are tempted to believe this distant clash of titans has little impact on our daily lives and that we can’t do anything about it anyway.

Well, it does, and we can. In fact, it is one of those rare situations where merely paying attention is doing something about it. Yet for the most part we stand aloof.

For example, how much attention did we pay earlier this month when five of our largest news organizations contributed to the government’s settlement of a lawsuit filed by nuclear scientist Wen Ho Lee? In his suit, Lee claimed that the federal departments of Energy and Justice and the FBI had violated the Privacy Act and falsely branded him as a spy by leaking information from his files to the press.

Lee’s lawyers subpoenaed five journalists to reveal who their government sources were. The journalists refused and eventually were ordered by the courts to divulge their sources or pay fines of $500 a day and possibly face jail.

After more than four years of litigation, the government agreed to pay $895,000 to settle the lawsuit. The five news organizations, ABC, the Associated Press, the Los Angeles Times, The New York Times and The Washington Post, agreed to pay a total of $750,000.

The journalists’ employers paid up even though they were not parties to the lawsuit. Their reporting was not challenged. They were not accused of libel or of publishing classified information. They appealed all the way to the Supreme Court, to no avail.

The journalists and their lawyers said that every professional fiber in their beings was against making such a deal, but they had reached the end of the road. So they agreed to the least unappealing of a very ugly set of options. The settlement did allow them to protect their sources, to escape the threat of jail and to halt the financial hemorrhaging from the legal battles — as well as to return full-time to what they do best: gathering and reporting the news.

What does this unsettling and unprecedented action have to do with the rest of us?

First and foremost, it marks yet another loss of ground in journalists’ efforts to report thoroughly and fairly on an increasingly secretive federal government. Sources are getting more and more skittish as new policies crack down on whistleblowers. The courts defer more and more to access restrictions and fail to balance government claims with the press’s need to inform the public.

When news organizations break major stories about questionable government actions, members of Congress call for laws targeting the press more often than for investigation of the questionable actions. The Department of Justice warns darkly that it has the power to prosecute journalists for receiving or publishing classified information. A judge sends a reporter to federal prison for 85 days for refusing to reveal a source.

Now, the Wen Ho Lee settlement encourages private litigants to view the press as a cheap source of information or a lucrative source of settlement funds.

When the press is under a siege of this magnitude, the flow of vital information reaching the public is constricted and public policy is distorted. The major news organizations particularly are intimidated, distracted or drained of resources to pursue the news aggressively and fight the legal battles that the public depends on.

It is little wonder that the USA has slipped to 44th place in the press-freedom rankings among other nations. And if this losing battle with government, in the courts, and with an uncaring public continues, press freedom will no doubt move closer to the 138th ranking of Russia, which has experienced a nasty descent into state control and censorship.

What can be done?

We should resist the idea that the press deserves all this simply because at times it can be irritating, superficial, sensational and invasive.

We should understand the necessity for the press on occasion to rely on sources that may not have the best of motives, as the police, the FBI and the CIA do.

We should hope that to protect those sources Congress will pass a federal shield law and that the president will sign it. The Free Flow of Information Act, with bipartisan sponsorship, is moving toward a Senate vote. It is burdened by lots of caveats, of course: It wouldn’t help reporters much in criminal cases or when national security was involved. But in cases like the Wen Ho Lee settlement, it would require courts to at least consider the public interest that news coverage serves.

Finally, we can remind government officials and the courts that there is interest by the public — by paying more attention.

Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail: pmcmasters@fac.org.


Related

Revised shield-law proposal picks up Senate support

Measure's authors add exceptions that could force reporters to disclose sources if they witness a crime or obtain information deemed secret by law. 05.19.06

5 news organizations to pay Wen Ho Lee
Settlement ends proceedings against reporters who were protecting confidential sources. 06.02.06

Press's Wen Ho Lee appeals denied review
Justices could have dismissed news organizations' appeals on basis of last week's out-of-court settlement, but declined to consider them. 06.05.06

Former USA Today reporter faces contempt in anthrax case
Federal judge says Toni Locy must identify sources for stories about ex-Army scientist Steven J. Hatfill or pay steep fines. 02.19.08

Bad news for good journalism
By Paul K. McMasters Legal onslaught of subpoenas, grand jury inquiries against press is matched by pace of federal government secret-making. 03.26.06

Poking holes in our history in pursuit of leaks
By Paul K. McMasters FBI's demand to pore through late investigative reporter Jack Anderson's papers is latest government outrage against press freedom. 04.23.06

Shield laws


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