Right. Remember last week when the DOJ said that it was going to be a lot more careful
about spying on journalists, or using them as a way to find their sources concerning government whistleblowing (or, in the DOJ's mind "evil leakers who are aiding the enemy")? Yeah, so a bit awkward on the timing here, as in the DOJ's fight against James Risen
(the NY Times reporter that the DOJ has been trying to force to reveal his sources concerning earlier NSA leaks), an appeals court has now said that Risen can be compelled to testify and reveal his sources
The two judges (out of a three judge panel) who felt this way seriously twisted previous precedents concerning whether or not someone could be compelled to testify if you "witness" a crime. But the point of the laws there are basically if you see someone dealing drugs, you can be compelled to testify about it. With a reporter talking to a source, where that source is blowing the whistle on the government, then yes, the whistleblower may be technically "breaking the law" in providing info to a journalist, but it's an entirely different situation than say a journalist reporting on drug dealers (the precedent case that the court relied on). But, the court ruled otherwise.
There is no First Amendment testimonial privilege, absolute
or qualified, that protects a reporter from being compelled to
testify by the prosecution or the defense in criminal
proceedings about criminal conduct that the reporter personally
witnessed or participated in, absent a showing of bad faith,
harassment, or other such non-legitimate motive, even though the
reporter promised confidentiality to his source.
It is difficult to overstate the chilling impact this particular ruling will have on investigative journalism, especially when it comes to reporting on government abuse and corruption. Even if a journalist promises confidentiality and completely means it
, this ruling means the government can just drag that journalist to court and force him or her to reveal his or her sources. That's going to completely freak out whistleblowers. While the court disagrees, I have a hard time seeing how this does not, fundamentally, violate the First Amendment's protections for press freedom.
Given that, I agree with Judge Gregory, who wrote a strong dissent.
Today we consider the importance of a free press in
ensuring the informed public debate critical to citizens’
oversight of their democratically elected representatives.
Undoubtedly, the revelation of some government secrets is too
damaging to our country’s national security to warrant
protection by evidentiary privilege. Yet the trial by press of
secret government actions can expose misguided policies, poor
planning, and worse. More importantly, a free and vigorous
press is an indispensable part of a system of democratic
government. Our country’s Founders established the First
Amendment’s guarantee of a free press as a recognition that a
government unaccountable to public discourse renders that
essential element of democracy – the vote – meaningless. The
majority reads narrowly the law governing the protection of a
reporter from revealing his sources, a decision that is, in my
view, contrary to the will and wisdom of our Founders.
The dissent is really worth reading, going into great detail on how this ruling appears to contradict previous rulings protecting the right of journalists to keep sources confidential.
In the past, Risen himself has said that he will appeal
such a ruling and, further, that he would go to jail before revealing his sources. Either way, yet again, we see the Obama administration's all-too-aggressive war against whistleblowers and the impact it has. Various national security reporters have already been talking about how sources have been clamming up lately, and this is only going to lead to more of that -- and much less oversight and reporting on government fraud, abuse and corruption.