Here is what you learn at the first session of Press Handlers 101: To manage reporters, treat them as if they are as special as they think they are.
If you run a sports team, give them access to the locker room and a press box with a great view. If you run a museum, send them tickets to your gala event. And if you run the government, offer them seats on Air Force One and an occasional “exclusive” interview with The Chief.
But a carrot-only approach does not work forever. Eventually you end up with a fat horse that thinks it is entitled to do, or in this case report, whatever it wants. That is not your goal. You want a “responsible” press, which covers the news you want it to cover and leaves the rest pretty much alone. You have to be prepared to show some stick.
The Obama administration handles the press as well as any in memory, and it has shown plenty of stick when it comes to the press and the First Amendment. But that was just for effect. News handlers at the Justice Department have hastened to issue guidelines to reassure “members of the news media” that they will never be prosecuted “based solely on newsgathering activities.”
Yet shortly after the guidelines’ release, James Risen, the author of the 2006 book “State of War” and a reporter for The New York Times, was ordered by a federal appeals court to testify about the source of material in his book. A former CIA official has been charged with providing the information.
In another case, a military judge found Pfc. Bradley Manning guilty of violating the Espionage Act for releasing classified documents and videos to WikiLeaks. Manning was acquitted of the more serious charge of “aiding the enemy,” but he still faces a potential 136-year sentence.
The press is also still teasing out the long-term implications of a search warrant that suggested Fox News correspondent James Rosen might be an “aider and abettor and/or a co-conspirator” in a crime because he received classified information from a source, and a secret search of The Associated Press’ telephone records. Meanwhile, the United States continues to demand that Russia return Edward Snowden, whose leaks of National Security Agency secrets to the press raised questions about whether journalists could be prosecuted for publishing the material.
The Justice Department guidelines, which are not binding upon Holder, nor upon future administrations, would limit the circumstances under which the government could seek access to “records related to newsgathering activities” without prior notice, as it did in the Associated Press search. The guidelines would also require greater involvement by the attorney general, rather than just lower-level prosecutors, in deciding whether to seek search warrants directed at members of the news media. However, the guidelines stress that “the Department cannot adopt certain measures without legislative action.”
Specifically, the document calls on Congress to pass a federal shield law. Shield laws, common at the state level, are supposed to prevent courts from forcing reporters to reveal their sources. In many cases, however, courts have limited or overridden shield laws, often on grounds that a defendant’s right to a fair trial trumps any right journalists have to protect their sources.
The guidelines, together with a recent press conference by President Obama, are supposed to reassure us that the administration has not completely forgotten about the First Amendment. Holder promised the guidelines would “help ensure the proper balance is struck when pursuing investigations into unauthorized disclosures.”
In reality, however, the guidelines simply continue the administration’s divide-and-conquer strategy of chipping away at freedom of expression. The president and his minions seek to be seen as defenders of a free press by supporting the established media, while attacking the freedom of anyone outside that establishment.
The guidelines refer repeatedly to “members of the news media” as if this were a self-evident class. However, it’s not at all clear who the Department of Justice really means when it uses this term. Is an author of a not-yet-published manuscript a member of the “news media?” How about a self-employed blogger, or someone who works for a web-only news service? Are we going to start counting page views to determine which sites are included as part of the “news media?” Or is the government going to make that decision based on how it views the site’s content?
It isn’t press freedom if the government gets to decide which part of the press is free to report the news.
Certainly there is a good chance that the administration does not mean to protect WikiLeaks and its founder, Julian Assange. In 2010, several officials suggested that the administration hoped to bring Espionage Act charges against Assange. The military’s decision to charge Manning with “aiding the enemy” makes clear exactly how the government feels about WikiLeaks.
In a “National Review Online” piece, a former Bush administration lawyer, John Yoo, chillingly expressed the rationale that seems to lie behind the thinking of current administration officials as well: “Manning’s defenders will say that Manning only leaked information to the 21st-century equivalent of a newspaper, and that he could not have known that al-Qaeda would read it. But Wikileaks is not the New York Times or the Wall Street Journal and it does not have First Amendment rights.”
The administration’s response to Citizens United v. Federal Election Commission represents another side of the divide-and-conquer strategy. The ruling was a clear victory for freedom of speech, affirming that any group of people, regardless of how they choose to organize themselves, has the right to make their opinions known. But the administration and its political allies have consistently painted corporate speakers as special interests, unworthy of free speech rights.
A federal shield law, as advocated by Holder, would further entrench the gulf between protected “journalists” and non-protected others. At a Senate Judiciary Committee hearing on a shield law bill, Sen. Dianne Feinstein, D-Calif., expressed concern that any shield law cover only “real reporters.” The bill’s sponsor, Sen. Chuck Schumer, D-N.Y., assured her that, under his bill, “Wikileaks and all those others are not protected.” If you are one of “all those others,” take note.
So far, the established press has shown itself to be all too willing to benefit at the expense of “all those others.” The Wall Street Journal has, on its editorial page, essentially called for Assange’s assassination. The New York Times, meanwhile, has firmly sided with the president in his contempt of Citizens United while continuing to proudly endorse (Democratic) political candidates on its own corporate-owned editorial page.
The recent investigations of Fox News and The AP might have roused some journalists from their torpor, but the administration’s latest promises of special treatment for these bona fide “members of the news media” could stroke their egos enough to keep them at bay.
Of course, privilege has its price. This might explain why, in a rare 40-minute interview with the president at the height of the Snowden flap, The New York Times was unable to find time for a single question about national security and surveillance. The president wanted the economy to be the “theme” of the interview so, even though there were no formal restrictions on the topics, the favored journalists played along.
Someday journalists are going to realize that freedom is a package deal: Either everyone has it or nobody does. In the meantime, however, those seats on Air Force One are really comfortable.
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