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A Conspiracy To Commit Journalism: The Justice Dept’s Dangerous New Argument Threatens Basic Reporting


Last night, the Washington Post reported on a little known leak case involving former State Department official Stephen Kim. In an alarming new extreme, the Justice Department and FBI argue there’s “probable cause to believe” Fox News reporter James Rosen “has committed or is committing a violation of [the Espionage Act], as an aider and abettor and/or co-conspirator” by soliciting information from Kim for a story.

While Rosen remains unindicted, the consequences of this argument are breathtaking.

As secrecy expert Steven Aftergood wrote, the government’s argument “all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.” Aftergood continued, “What makes this alarming is that ‘soliciting’ and ‘encouraging’ the disclosure of classified information are routine, daily activities in national security reporting.”

Nothing Rosen did is out of the ordinary for good reporters, as New Yorker‘sRyan Lizza pointed out when referencing the alleged ways Rosen communicated with his source: “If James Rosen’s ‘clandestine communications plan’ were illegal, every journalist in Washington would be locked up. Unreal.”

While these new revalations are certainly disturbing, contrary to popular belief, they are not unprecedented. First, as Glenn Greenwald documented today (and has been documenting for years), this is the same argument the Justice Department has been using in their attempt to indict WikiLeaks and Julian Assange.

This is why it’s always been so important for journalists to aggressively stand up for WikiLeaks’ rights. A WikiLeaks conviction would mean that the next ‘co-conspirator’—a.k.a. ‘journalist with a scoop’—may very well face indictment.

But the most starking parallel to this case comes in a new book by former New York Times chief counsel James Goodale, which details how the Nixon administration once convened a secret grand jury to indict New York Times reporter Neil Sheehan and his wife, New Yorker staff writer Susan Sheehan, for obtaining and copying the Pentagon Papers from Dan Ellsberg.

Goodale recounted the near miss in the Daily Beast in 2011:

In 1971, after Nixon had lost the Pentagon Papers case in the Supreme Court, he desperately wanted to bring criminal charges against the Times. Attorney General John Mitchell first went to U.S. Attorney Whitney North Seymour Jr. in New York and asked him to indict the Times. When Seymour refused, a grand jury was convened in Boston, where the prosecutors eventually dragged virtually every journalist and anti-war academic in the Cambridge area to court using subpoenas. The Justice Department wanted to know exactly who knew of the Pentagon Papers before they were released and how they ended up at the New York Times

The scope of the investigation was extraordinarily broad, yet this episode, besides in Goodale’s new book and 2011 article, has largely been lost in the history books, despite the many well-known names that were dragged into court to testify (though almost all of them refused):

A Who’s Who of Boston-based reporters and anti-war activists were then forced to testify, including New York Times reporter David Halberstam, anti-war activists Noam ChomskyHoward Zinn, and two senatorial aides to Mike Gravel and Ted Kennedy. Harvard Professor Samuel Popkin would even serve a week in jail for refusing to testify as to his sources, citing the First Amendment right to keep them confidential.

Perhaps the most amazing part of this story, recounted in much more detail in Goodale’s book, is that the Times was so sure that Sheehan would be indicted for ‘conspiracy to commit espionage’ that New York Times publisher drew up a statement condemning the indictment that never appeared. The statement, published in full for the first time in Goodale’s book, reads in part:

“The indictment of Neil Sheehan for doing his job as a reporter strikes not just at one man and one newspaper but at the whole institution of the press of the United States. In deciding to seek Mr. Sheehan’s indictment, the administration in effect has challenged the right of free newspapers to search out and publish essential information without harassment and intimidation.”

Those words ring true today whether we’re talking about Fox News’ James Rosen, WikiLeaks, or any of the other media organizations now at risk because of this draconian and out-of-control war on leaks.

As Goodale put it, “conspiracy to commit espionage” can more accurately be characterized as “conspiracy to commit journalism.” You can buy Goodale’s book here.

UPDATE: Fox News just released a statement defending its reporter James Rosen and it bears a striking resemblance to Times publisher Arthur Sulzberger’s unpublished statement above from 43 years ago. It reads:

“We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter. 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.”

Regulate social media? No – we need a free speech law


RECENT DEBATES ABOUT social media commentary have brought the question of freedom of speech in Ireland into focus. While politicians seem to be on a quiet path to try and dampen the vigour of their critics, it is worth pointing out that in Ireland there is no unqualified right to freedom of speech.

Article 40.6.1.i of our constitution guarantees liberty for the exercise of the right of citizens to express freely their convictions and opinions. So far so good. Unfortunately it heavily qualifies the statement with a ‘however’ in that this right “shall not be used to undermine public order or morality or the authority of the State.”

The next line in the same article is where our famous blasphemy law comes from:

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.

All of these qualifications pretty much mean that freedom of speech in Ireland is whatever the government and judiciary of the day are having themselves. What precisely does “public order” mean? What is the “morality” of the state? Or its authority? What’s seditious or indecent?

Interpretation

There’s no constitutional appendix outlining what can and can’t be banned under these loose phrases. The judiciary tends to adopt a conservative view when interpreting these clauses, to pretty much mean that whatever the state bans in law is constitutional. After all, their job is to interpret the wishes of the framers, and the esteemed Eamon de Valera was not shy when it came to censorship and upholding the morals of the nation.

In general Ireland today is a tolerant and open democracy, where most of the censorship is self-imposed for the benefit of social normality or from fear of litigation, like the way we report on car accidents or former persons of interest to tribunals. There are however government curbs on freedom of speech as well as hangovers from our more uptight Archbishop McQuaid days.

The Minister for Finance, for example, has the power under the Credit Institutions (Stabalisation) Act 2010 to take some fairly extreme financial action and ban any open discussion of the details; or even publishing that such an order or direction has been made. Days after that act was passed €3.7 billion was transferred from the state to AIB with journalists kicked out from court before the matter was discussed. Whether or not other orders have been made with your and my money at stake I can’t tell you.

Even if a concerned citizen involved in the process were to leak the details, they could not be published without severe punishment falling on the heads of those involved.

Leaking

In terms of context rather than content, I’m reminded of the leaking of the Pentagon Papers and their publication in 1971. The papers were a classified Pentagon study of the war in Vietnam exploring how the US government had effectively lied about its involvement in that war and its escalation.

Though the papers were classified, the New York Times’ legal counsel argued that under the first amendment to the US constitution the press had a right to publish information significant to the people’s understanding of the Vietnam War. The Nixon administration sought an injunction against publication. If such a thing were to happen in Ireland, I’d say everyone would run for the hills and the publication in question would be in it deep.

In the US, the Washington Post joined in the publication and the US Supreme Court ruled that the US government did not have the right to censor the press on the matter. The court found that the right to free speech was more important to the security of the Republic than the “broad and vague” definition of security that the government wanted to preserve.

The Supreme Court Justice Brown actually made reference to a few of the things that are qualifying statements in our own constitution during his summary. He said that the framers of the first amendment specifically thought that strength and security came from providing “unabridged” freedom of speech, press, religion and assembly.

Regulation

There is presently open talk of regulating new media and social communication online in Ireland, and Declan Ganley has just won a landmark defamation case against a Twitter user. I’m not for the right of anyone to bully, harass or harm the reputation of anyone else freely and without any fear of consequence. I do believe however that in Ireland there is too much scope to stifle free speech, if not explicitly in law then from the bully pulpit or through the threat of legal consequences.

In the US the right to absolute freedom of speech allowed the publication of the Pentagon Papers. It also leads to some fairly vitriolic discourse in politics and, ultimately, it is the freedom enjoyed by people like the Westboro Baptist Church who picket funerals with slogans like “God Hates Fags”. The trouble with trying to ban this sort of distasteful stuff is that the net, ultimately, can be extended to catch other things. It was one of our former Attorney Generals during the campaign against Oireachtas inquiries who pointed out that a constitution is not designed to protect you from a benign government.

Ireland is a country where the Republic has been blighted by corruption and mismanagement at its very core; where we can hardly get adequate protections together for whistleblowers; and where the economy is in ruins – but the government can do things with your money and ban anyone from even saying it happened. I believe that instead of talking about regulation of communications, we should be opening up our own First Amendment-like rights.

Constitution

We should get rid of the qualifying statements from our Constitution on freedom of speech. It’s not for the state to decide if what you or I say is undermining public morality. It’s more seditious to the security of democracy to allow politicians and civil servants to decide if what you or I are saying is seditious. Too much free speech is stifled by the person with the deeper pockets who can pay their solicitors and senior counsels to run down to the High Court.

Yes, a completely free debate can become vitriolic. Then again, nobody takes the Westboro Baptist Churches of this world all that seriously for their abuse of their freedom. And in not regulating that freedom, you don’t run the risk of stifling somebody who has something important to say.

Aaron McKenna is a businessman and a columnist for TheJournal.ie. He is also involved in activism in his local area. You can find out more about him at aaronmckenna.com or follow him on Twitter @aaronmckenna.

via Aaron McKenna: Regulate social media? No – we need a free speech law.

via Aaron McKenna: Regulate social media? No – we need a free speech law.

How the Western world is limiting free speech –


Free speech is dying in the Western world. While most people still enjoy considerable freedom of expression, this right, once a near-absolute, has become less defined and less dependable for those espousing controversial social, political or religious views. The decline of free speech has come not from any single blow but rather from thousands of paper cuts of well-intentioned exceptions designed to maintain social harmony.

In the face of the violence that frequently results from anti-religious expression, some world leaders seem to be losing their patience with free speech. After a video called “Innocence of Muslims” appeared on YouTube and sparked violent protests in several Muslim nations last month, U.N. Secretary General Ban Ki-moon warned that “when some people use this freedom of expression to provoke or humiliate some others’ values and beliefs, then this cannot be protected.”

It appears that the one thing modern society can no longer tolerate is intolerance. As Australian Prime Minister Julia Gillard put it in her recent speech before the United Nations, “Our tolerance must never extend to tolerating religious hatred.”

A willingness to confine free speech in the name of social pluralism can be seen at various levels of authority and government. In February, for instance, Pennsylvania Judge Mark Martin heard a case in which a Muslim man was charged with attacking an atheist marching in a Halloween parade as a “zombie Muhammed.” Martin castigated not the defendant but the victim, Ernie Perce, lecturing him that “our forefathers intended to use the First Amendment so we can speak with our mind, not to piss off other people and cultures — which is what you did.”

Of course, free speech is often precisely about pissing off other people — challenging social taboos or political values.

This was evident in recent days when courts in Washington and New York ruled that transit authorities could not prevent or delay the posting of a controversial ad that says: “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat jihad.”

When U.S. District Judge Rosemary Collyer said the government could not bar the ad simply because it could upset some Metro riders, the ruling prompted calls for new limits on such speech. And in New York, the Metropolitan Transportation Authority responded by unanimously passing a new regulation banning any message that it considers likely to “incite” others or cause some “other immediate breach of the peace.”

Such efforts focus not on the right to speak but on the possible reaction to speech — a fundamental change in the treatment of free speech in the West. The much-misconstrued statement of Justice Oliver Wendell Holmes that free speech does not give you the right to shout fire in a crowded theater is now being used to curtail speech that might provoke a violence-prone minority. Our entire society is being treated as a crowded theater, and talking about whole subjects is now akin to shouting “fire!”

via Shut up and play nice: How the Western world is limiting free speech – The Washington Post.

via Shut up and play nice: How the Western world is limiting free speech – The Washington Post.

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