The Widdershins

Archive for May 23rd, 2013

Good Thursday, Widdershins.

One of the latest entries into the Presidential crapstorm-in-progress is the AP scandal.  Unless you have been watching back-to-back NCIS marathons, you have most certainly heard about the outrage over the DOJ having presented a subpoena to Verizon, who thoughtfully provided certain AP reporter’s phone records while never apprising their customers of the situation.   For once, the Republican party and the “lamestream media” are in complete agreement – off with their heads!  Who would have thunk it?

Not so very long ago, a President named Bush asserted his right to have DOJ snoop into out conversations, out emails, even our Godblessed library cards should be he fit do so, in the name of “national security”.   Oddly, the Republicans thought that this would be a dandy idea, and castigated anyone who thought differently.  So what the heck happened here?

If I were a betting woman, I would wager that the Republican outrage was sparked more by the subpoena that was served and honored  for two days’ worth of emails for FOX reporter James Rosen than the one issued regarding the AP reporters..  The subpoena was granted on the basis that Rosen was suspected of soliciting classified information from a government employee.  Of course, now everyone is deeply concerned about the First Amendment.

Michael Clemente, News Director for FOX, said:

“We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter,” Clemente said. “In fact, it is downright chilling. We will unequivocally defend his right to operate as a member of what up until now has always been a free press.”

Not to be outdone, Sen. Marco Rubio is appropriately horrified:

 “The sort of reporting by James Rosen detailed in the report is the same sort of reporting that helped Mr. Rosen aggressively pursue questions about the Administration’s handling of Benghazi. National security leaks are criminal and put American lives on the line, and federal prosecutors should, of course, vigorously investigate. But we expect that they do so within the bounds of the law, and that the investigations focus on the leakers within the government — not on media organizations that have First Amendment protections and serve vital function in our democracy.”

And so forth.

As I understand it, Rosen published an online article that led the DOJ to believe that classified info had been leaked to him regarding North Korean nuclear testing.  The FBI traced the informant back to the State Department, then tracked Rosen’s activities through the DOS by visitor’s records.  The investigation, it seems, was to delve into potential criminal solicitation of classified information on Rosen’s part.   So how does this all relate to the thorny topic of the First Amendment, the public’s right for information, and national security?

It is somewhat hard to believe that anyone would say that any government employee has the right to give out classified information.  However, does a reporter actually have the right to publish said classified information? Exactly how absolute are First Amendment rights anyhow?  Who the hell knows?  We all know that the courts have always held that it is illegal to shout “fire” in a crowded building, and it is illegal to threaten to kill an elected official, but after that, where are the bright lines, if any?   Geoffrey Stone wrote an article for Huffington Post:

But is Rosen, as a reporter, exempt from the ordinary law of criminal solicitation? Does the First Amendment give a reporter a constitutional right to do what other citizens have no right to do? The claim, of course, is that unlike the situation in which X solicits Y to kill Z, Rosen’s solicitation was undertaken for the public good, because Fox News, after all, has a constitutional right to publish the information. There is, in other words, no good reason to give X a right to solicit Y to kill Z, but there is a good reason to give Rosen a right to persuade the source to disclose the information to him (even though it is a crime for the source to do so). Confused yet?

The problem with this argument is that, in interpreting the First Amendment, the Supreme Court almost never accepts such claims. For example, suppose someone walks down the street naked to protest laws against obscenity, or speeds to get to a political rally in time to give a speech, or refuses to pay his taxes so he can give larger contributions to his favorite political candidates. In all of these situations there is a speech-related reason why the actor wants an exemption from a law of otherwise general application, but the Court has consistently, and quite reasonably, rejected such claims.

Similarly, in the Free Press context, suppose a journalist commits an illegal burglary in order to obtain information about a possible scandal, or conducts an illegal wiretap in order to prove that a congressman took a bribe, or steals a sophisticated camera in order to take better photos for her website. In none of these situations will the journalist be able, under current law, to assert a First Amendent right to commit the criminal offense because she did so in order to be a more effective journalist.

So where is the bright line between normal “newsgathering” and “solicitation’?   Damned if I know, and apparently Geoffrey is none too certain, either.   Some of the news shows are now rattling on about reporter shield laws, and the like.  This should be interesting.

This is an open thread.


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