The part of the First Amendment that prohibits “abridging the freedom … of the press” is now up against the wall, as the Obama administration continues to assault the kind of journalism that can expose government secrets. 

Last Friday the administration got what it wanted—an ice-cold chilling effect—from the Fourth Circuit Court of Appeals, which ruled on the case of New York Times reporter James Risen. The court “delivered a blow to investigative journalism in America by ruling that reporters have no First Amendment protection that would safeguard the confidentiality of their sources in the event of a criminal trial,” the Guardian reported.

The executive branch fought for that ruling-—and it is now celebrating. “We agree with the decision,” a Justice Department spokesman said. “We are examining the next steps in the prosecution of this case.” 

The Risen case, and potentially many others, are now under the ominous shadow of the appeals court’s pronouncement: “There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify … in criminal proceedings.”

At the Freedom of the Press Foundation, co-founder Trevor Timm calls the court ruling “the most significant reporter’s privilege decision in decades” and asserts that the court “eviscerated that privilege.” He’s not exaggerating. 

Journalists who can be compelled to violate the confidentiality of their sources, or otherwise go to prison, are reduced to doing little more than providing stenographic services to pass along the official story. That’s what the White House wants.

The federal Fourth Circuit covers the area where most of the government’s intelligence, surveillance and top-level military agencies—including the N.S.A. and C.I.A.—are headquartered. The ruling “pretty much guts national security journalism in the states in which it matters,” Marcy Wheeler writes.

The decision came seven days after the Justice Department released a news media policy report announcing “significant revisions … regarding investigations that involve members of the news media.” The report offered assurances that “members of the news media will not be subject to prosecution based solely on newsgathering activities,” but added that the government will take such action “as a last resort” when seeking information that is “essential to a successful investigation or prosecution.” 

Translation: We won’t prosecute journalists for doing their jobs unless we really want to.

Over the weekend, some news accounts described Friday’s court decision as bad timing for Attorney General Eric Holder, who has scrambled in recent weeks to soothe anger at the surveillance of journalists. “The ruling was awkwardly timed for the Obama administration,” the New York Times reported. But the ruling wasn’t just “awkwardly timed”—it was revealing, and it underscored just how hostile the White House has become toward the press.

News broke in May that the Justice Department had seized records of calls on more than 20 phone lines used by Associated Press reporters over two months and had done intensive surveillance of a Fox News reporter that included obtaining phone records and emails. The Obama administration tried to defuse the explosive reaction without actually retreating from its offensive.

At a news conference two months ago, when Obama refused to say a critical word about the surveillance, he touted plans to reintroduce a bill for a federal shield law so journalists can protect their sources. But he didn’t mention that he has insisted on a “national security exception” that would make such a law approximately worthless for reporters doing the kind of reporting that has resulted in government surveillance—and has sometimes landed them in federal court.

Obama’s current notion of a shield law would leave his administration fully able to block protection of journalistic sources. In a mid-May article, the Freedom of the Press Foundation shed light on the duplicity: As a supposed concession to press freedom, the president was calling for the reintroduction of a 2009 Senate bill that “would not have helped the Associated Press in this case, and worse, it would actually make it easier for the Justice Department to subpoena journalists covering national security issues.”

Whether hyping a scenario for a shield law or citing new federal guidelines for media policies, the cranked-up spin from the administration’s public relations machinery does not change the fact that Obama is doubling down on a commitment to routine surveillance of everyone, along with extreme measures specifically aimed at journalists and whistleblowers.

The administration’s efforts to quash press freedom are in sync with its unrelenting persecution of whistleblowers. The purpose is to further choke off the flow of crucial information to the public, making informed “consent of the governed” impossible while imposing massive surveillance and other violations of the First, Fourth and Fifth Amendments. 

Behind the assault on civil liberties is the maintenance of a warfare state with huge corporate military contracts and endless war. The whole agenda is repugnant.

 

Norman Solomon, an Inverness Park author and media critic, is the co-founder of RootsAction.org and the founding director of the Institute for Public Accuracy.