The First Amendment guarantees freedom of the press, not freedom for the press. Journalists show a surprising inability to recognize the distinction.
Consider the reactions to the Supreme Court’s recent decision to turn down James Risen’s appeal. Risen, a reporter for The New York Times, refused to comply with a subpoena from federal prosecutors seeking information about a source he used in his 2006 book, “State of War.” The U.S. Court of Appeals for the Fourth Circuit, in Richmond, Virginia, ordered Risen to comply, The Times reported, but Risen has maintained his determination to fight the order.
Risen is a good reporter and an ethical journalist. He seems prepared to go to jail for his principles. I respect that, and I hope if I were in his place, I would behave similarly. Disregarding a court order to disclose one’s source is, fundamentally, an act of civil disobedience. Those who engage in such acts must be prepared to bear the consequences.
The government can choose not to pursue Risen’s testimony. This is the hope Risen’s lawyer, Joel Kurtzberg, has expressed. The Obama administration has both argued that there is no special privilege for reporters to refuse to testify about their sources and hinted that it might not ask that reporters who refuse be held in contempt. As long as the government sends such mixed signals, Risen may or may not end up in jail - but the threat is real, and it has not deterred him.
As American citizens, journalists enjoy the same protections for freedom of speech and publication as everyone else. They run into problems when they assert special privileges on behalf of their self-assigned role of keeping the citizenry informed. That role, some argue, is so essential that those who fill it must be granted special protections.
There are two problems with this argument. First, who exactly counts as a journalist, entitled to such special privileges? Is it only someone who works for a respected publication like The New York Times? What about a scribbler for a checkout-stand scandal sheet? Or a lone blogger, or the blogger’s 18th century counterpart, the pamphleteer?
If journalistic privilege makes sense at all, it makes sense to extend the privilege of refusing to disclose one’s sources to anyone who has disseminated information provided by a confidential source. In that sense, anyone can be a journalist. Yet few professional journalists are prepared to concede that they are not substantially different in this arena than a lone blogger like me.
The second problem with the argument for a journalists’ privilege is that while journalists purport to act on the behalf of the citizenry, the citizenry is deafeningly silent on the subject. Does the public demand that prosecutors leave journalists alone? If so, it does it in a very soft voice.
Professor Robert Post, the dean of Yale Law School, observed that the current Supreme Court would have been unlikely to find in Risen’s favor, even if it had agreed to hear the case. “Just a few terms ago, in the Citizens United decision, a majority of the Court reiterated that the First Amendment gave no special privileges to the press that were not to be accorded to every speaker,” Post said in an email to Foreign Policy.
We could still easily extend the privilege not to disclose unnamed sources to all publishers or news-gatherers. The proper way to do that is through legislation - which the Obama administration claims to support, even as it aggressively pursues leakers and piles pressure on the journalists to whom they leak. Such a law would effectively declare that if the government wants to have secrets, it is the job of the government, not journalists, to protect them. I think there is a lot of merit in the idea, but our federal statutes have not gotten there yet, and state laws vary widely in their scope and effectiveness.
Until the law provides such an explicit privilege for members of the press, the burden of protecting anonymous sources will have to be borne by journalists like Risen, who are prepared to go to jail rather than break their promises.