The Widdershins

Remain Calm, Etc: May We Speak Freely?

Posted on: May 23, 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.


17 Responses to "Remain Calm, Etc: May We Speak Freely?"

Late for work Chatblu but I just got a response to my letter from Marco Rubio which I will post in its entirety including my take on it.

That should be fascinating.

I am shocked, SHOCKED to find out that Fox News is outraged at the current administration!

Speaking of ridiculous journalists, did you see this:

@4: Good heavens! (Pun absolutely intended.)
Speaking of Oklahoma:

chat@4: Oh he and Inhoffe (?) were both quick to vocalize the fact that *this* is different from Sandy, yadda, yadda. 🙄

Of course it is, Sandy had no ill effects upon Oklahoma.

Chat, so glad you posted on this and you’ve gotten to the core question: It is much like the old fellow who would lash himself to a palm tree during a hurricane to show he could take the wind, but what he didn’t realize, it isn’t the wind it is what is carried by the wind what kills you.

In these types of First Amendment cases, it isn’t the right to freely publish (absent a prior restraint claim) it is how you got the information in the first place. Every government employee who has access to secret or even confidential information is bound to not share that information with anyone. A government employee who has chosen to disregard his/her vow of confidentiality is a law breaker.

The potential solicitation charge is nothing more than a bargaining chit, but it will allow the bloviators to wet themselves hourly.

Prolix said: A government employee who has chosen to disregard his/her vow of confidentiality is a law breaker.

That’s right. When i worked for the Navy I had a secret clearance and didn’t realize I had it until I was in personnel one time reviewing my O.P.F. and saw it. I went back and asked my boss about it and she said “You know when you get this and that which comes to your attention and you act on it?” I said yep, and she said because I got that stuff is why I got the secret clearance. And it wasn’t even that interesting.

it will allow the bloviators to wet themselves hourly.

Then they can use these:

@8: Exactly. Should Rosen have solicited the info, he is indeed guilty of complicity. Not to mention the bounds of common sense being largely infracted.

“Common sense”? What is this “common sense” whereof you speak?

sorry so late forgot Thursday was laundry night here is the response I got from Rubio inc….

Mr Rubio’s response to my request that he take action on sensible Gun Safety legislation. I see that he only quoted 1/2 of the second amendment in his response he must think I am an Idiot.

The Second Amendment Reads as passed by congress: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Notice how he forgot to include the entire part of the 2nd Amendment in his response. here is his offices complete response:

Dear Mr. Varvel,

Thank you for writing me regarding the Second Amendment to the U.S. Constitution. I understand this is an important issue and I appreciate hearing your thoughts.

The Second Amendment to the U.S. Constitution states that “the right of the people to keep and bear arms shall not be infringed.” I hold the fundamental belief the Second Amendment should not be altered. At the same time, I have always been open to measures that would keep guns out of the hands of criminals and the mentally ill.

In light of recent tragedies, some have suggested restricting gun ownership as a way to curb gun violence. I am always open to ideas on how to stop violent crimes, however, I have concerns when these suggestions are solely directed toward restricting gun ownership. To that end, I cosponsored a bipartisan piece of legislation, the Excellence in Mental Health Act or S.264, along with Senators Debbie Stabenow (D-MI) and Roy Blunt (R-MO), to improve quality standards and expand access to mental health services. I believe mental health access is an important step to ensure tragedies like the ones we have seen recently do not occur again.

As you may know, the Senate recently voted on gun-control legislation, S. Amdt. 715 to S. 649 introduced by Senators Pat Toomey (R-PA) and Joe Manchin (D-WV), which targeted law-abiding citizens. I believe this legislation would have had a profound impact on an individual’s right to bear arms according to the Second Amendment. I opposed this legislation because it was not directed toward the major issue surrounding the gun control debate: violence. We should work to reduce tragic acts of violence by addressing violence at its source, including untreated mental illness, a lack of adequate information-sharing on mental health issues, and the breakdown of the family, not by restricting the rights of law-abiding citizens.

It is an honor and a privilege to serve you as your United States Senator. I appreciate you offering your opinion on this issue. If I can ever be of any assistance to you, please do not hesitate to contact me.


Marco Rubio
United States Senator

Mr Rubio I promised in my letter to you that I would campaign night and Day go door to door if I had to to defeat you as Senator in 2016… Consider this an open declaration of war against your continued holding of the seat as Junior Senator from Florida. Good Riddance.

Do you think open Declaration of War was a bit to strong? Or was I just speaking Republican?

Sounds pretty Republican, especially if you were to mumble something about taking your country back.

Well I would love to free our country from the grip of those insufferable know nothings like Rubio.

Amen, Brother Fuzzy, Amen.

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