What if the practice of journalism became a crime?
Imagine the possibilities. Computer screens carrying news and commentary would blink and go blank. Wire-service bureaus would close up shop. TV news studio lights would sputter and go dark. With a heavy shudder, printing presses would grind to a stop.
Ah, blessed silence.
Ah, blissful ignorance.
Ah, shrugging off the shackles of freedom.
Such a flight of fancy is preposterous, of course. Yet we cannot dismiss the reality that for an increasing number of journalists, subpoenas, grand jury inquiries, court battles, huge legal bills and possibly jail cells could be the reward for doing well in their constitutional calling.
Right now, more than 30 journalists in half a dozen different cases, criminal and civil, are confronted with subpoenas that will force them either to reveal their confidential sources or go to jail to protect them. These journalists didn’t commit a crime. They did commit themselves to protecting the sources who helped them to bring to the nation’s attention important information about threats to our freedom or risks to our safety: warrantless spying on American citizens, secret interrogation centers for terrorism suspects in foreign countries, the mishandling of nuclear secrets and investigations of anthrax poisonings and California Muslims suspected of ties to terrorists.
Many professionals within federal law enforcement agencies no doubt would prefer to devote their energies to fighting terrorism, crime and corruption than to expend additional resources tracking down whistleblowers and journalists. Many political leaders, on the other hand, have seemed more alarmed by leaks and news stories than by the policies and actions that have provoked them.
Last month, CIA Director Porter Goss railed against leaks of sensitive information before a Senate committee and made no secret of his stance: “It is my aim and it is my hope that we will witness a grand jury investigation with reporters present being asked to reveal who is leaking this information.”
Sen. Pat Roberts, R-Kan., chairman of the Senate intelligence committee, says he is interested in a law that bears a painful resemblance to Great Britain’s Official Secrets Act, which allows for the prosecution and muzzling of journalists and citizens who receive sensitive information.
His counterpart in the House, Rep. Pete Hoekstra, R-Mich., is similarly predisposed toward such an exception to our free-speech freedoms.
Officials of the U.S. Justice Department are not waiting for legislative action. They apparently believe they can accomplish the same thing in the courts. Remarkably, a federal judge has encouraged their constitutional adventurism with an extraordinary ruling.
On Jan. 20, Judge T.S. Ellis III sentenced Lawrence Franklin, a mid-level Pentagon analyst, to 12 and a half years in prison for providing classified information to two lobbyists. That was not so remarkable an outcome, except that Judge Ellis went further and endorsed the federal prosecutors’ assertions that the recipients of that information also could be prosecuted.
“Persons who have unauthorized possession, who come into unauthorized possession of classified information, must abide by the law. That applies to academics, lawyers, journalists, professors, whatever,” Judge Ellis said from the bench during his sentencing statement. The law he refers to is the Espionage Act of 1917.
Thus, what had been a somewhat obscure case is now making waves throughout the nation’s capital and elsewhere as the two recipients of Franklin’s information, Steve Rosen and Keith Weissman, former employees of the American Israel Public Affairs Committee, or AIPAC, head to trial, scheduled to begin on April 25 before Judge Ellis.
If the judge follows his initial statement and convicts them, the impact on Americans engaged in protected First Amendment activities will be immediate and profound, given the pace, scope and nature of secret-making within the federal government today. As a defense motion to dismiss asserts: “The government’s construction of [the Espionage Act] would allow for the punishment of any private citizen who obtains classified information — regardless of how or why — and then discloses it to another private citizen.”
Even some Justice Department officials concede that prosecution of a journalist under the Espionage Act would raise “legitimate and serious issues.” Yet they press on.
If the approach that federal prosecutors and, thus far, one federal judge embrace is allowed to stand, Americans will move a long step toward a society in which citizens are permitted to receive only that information which the government authorizes or concocts. That may be a rational reading of the law, but it certainly would be a woeful misapprehension of First Amendment principles and the traditions that hold a democracy together.
We live in a time of fear, of course: fear of terrorism, fear of failure, fear that the malodorous whiff of desperation or abuse will saturate the political air. It drives our leaders’ obsession with secrecy and our citizenry’s acceptance of it.
It becomes the job of journalists, therefore, to remind us from time to time that secrecy and security are not always the same thing.
Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail: email@example.com.