Ken Silva | February 21, 2015
The index cited “judicial harassment” of New York Times reporter James Risen, the arbitrary arrest of at least 15 journalists during the Ferguson, Missouri clashes, and the fact that U.S. journalists are still not legally entitled to protect sources who reveal confidential information about their work.
The U.S.’s slip in press freedom rankings mirrors its seven-place drop in Freedom House’s Global Press Freedom Index from 2013-2014, though the country still ranks among the 14 percent of countries whose press is classified as “free” in the latter scale.
Reality may be even worse than the rankings suggest. Legal protections for the press have only eroded since the 2006 trough year when the Bush Administration threatened to prosecute Risen for publishing stories chronicling warrantless wiretapping of citizens’ phone calls.
Since the Obama Administration took power, it has used the Espionage Act to prosecute data leakers a record seven times—more than every other president combined in the law’s nearly 100-year history—a Fox News journalist has been spied on by the Justice Department under the justification that he’s a criminal conspirator, Wikileaks creator Julian Assange has been declared “a hi-tech terrorist,” and the Supreme Court refused to overturn a lower court ruling against Risen stating that the First Amendment doesn’t protect him from refusing to testify about a whistleblower that allegedly leaked classified information about the CIA’s efforts to disrupt Iran’s nuclear program.
Reports from Pulitzer Prize-winning journalist Glenn Greenwald even suggest that media outlets routinely vet their articles with government officials before publishing them.
“This consultative process with the government, The Guardian lawyers explained, is what enables newspapers to demonstrate they have no intent to harm national security by publishing top secret documents, and thus lack the requisite criminal intent to be prosecuted,” Greenwald wrote in his 2014 book No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, explaining that papers such as The New York Times and Washington Post often spend weeks having controversial stories reviewed by the feds.
Greenwald scoffs at what he regards as a subservient process, and even wrote that he threatened his editors at The Guardian that he would publish the stories about the National Security Administration’s massive surveillance system on his own website if they kowtowed to the government.
What’s scary, however, is the fact that no one knows what would have happened to Greenwald had he had made good on his threats, because there are no court precedents on the issue of publishing information sensitive to national security. A provision of the Espionage Act outlaws “unauthorized communication” of national defense information, and some have argued that it could indeed be used to punish the media for publishing classified information, regardless of what the First Amendment says.
So far, none of the law’s targets have been journalists. Since the “unauthorized communication” provision has never been tested against the media, watchdogs have no idea where they stand with respect to the law. Who knows what the courts might rule if such an issue is brought before them now?
Many people mistakenly think that the American press is protected by the 1971 decision in the famous Pentagon Papers case, where the Supreme Court ruled that the U.S. government did not have the authority to prevent The New York Times from printing classified documents revealing that the military had secretly bombed Cambodia and Laos in the Vietnam War, among other transgressions. However, the Pentagon Papers case only raised the issue of whether the U.S. had the power to issue an injunction against publication, not whether it could criminally prosecute someone after the fact. We still don’t know whether such a charge would withstand court scrutiny.
The inconclusive ruling even prompted legal scholars Harold Edgar and Benno Schmidt Jr. to declare that the Espionage Act remained a “loaded gun pointed at newspapers and reporters who publish foreign policy and defense secrets” in their 1973 analysis of the case in Columbia Law Review. Fast-forward four decades, and the government seems to have taken the safety off.
Granted, there have been a few victories for the press this century. In 2001 the Supreme Court ruled that a reporter wouldn’t be held liable for broadcasting a conversation that had been illegally taped, and in 2009 the government dropped its case against two lobbyists charged under the Espionage Act for essentially doing what (good) journalists do: Trying to get government officials to reveal secret information.
Those victories are small ones, though, when one considers the overall decline in press freedom since the RWB first created its rankings. In another 10 years, a journalist like Greenwald could be collecting his or her Pulitzer from behind bars if the downward trend continues.
Ken Silva is a freelance journalist.