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Government Must Not Define Who Is a Journalist

By Ben L. Kaufman · June 11th, 2014 · On Second Thought

Developments at the U.S. Supreme Court and Colorado legislature demonstrate how government restricts our access to news. 

It was no surprise when the court — commonly abbreviated as SCOTUS — refused to block Obama attempts to force New York Times reporter James Risen to confirm that former CIA officer Jeffrey Sterling gave him classified information.

Risen wrote about Operation Merlin, a secret American program to damage Iran’s nuclear program. Federal prosecutors want Risen’s testimony against Sterling, who is charged with violating the Espionage Act. Risen first wrote about Sterling in 2002 when Sterling sued the CIA, blaming racial discrimination for his dismissal.

London’s Guardian — which published Edward Snowden’s revelations of NSA spying — offered this background to Risen’s predicament: 

“After the (dismissal) story was published, the government contends, Sterling began telling Risen about Operation Merlin, a failed CIA plot to hand Iran a deliberately flawed blueprint for a nuclear warhead. In 2004, Risen told the CIA he was preparing to publish a story about the mismanagement of the operation. ... The government convinced The New York Times … not to publish the story, but Risen later published an expanded version separately, in his 2006 book, State of War.

“In 2008 Risen was served with a subpoena to testify about his contacts with Sterling. A district court ruled that the reporter should not be required to testify, but that decision was overturned by a 2-1 appeals court ruling in 2013, which found that a reporter’s privilege (to protect confidentiality) was guaranteed by neither the First Amendment nor common law.”

That set up Risen’s failed attempt to get SCOTUS to recognize a federal shield law protecting reporters from having to name confidential sources. Ohio, Kentucky, Indiana and most other states have some sort of shield law. 

Risen says he’ll go to jail rather than name his source. Risen’s lawyer says there is so much evidence against Sterling that Risen’s testimony is unnecessary. Now it’s up to federal prosecutors. They can seek a contempt citation and jail sentence or they can let Risen off the hook. 

Reporters are ethically bound to honor promises of confidentiality — even if it means jail — unless sources release them from that promise or prosecutors drop their demands. 

In an unrelated fiasco, the anarchic system of approving SCOTUS press passes barred a blogger because of potential conflicts of interest. The SCOTUS credential flap began when the court denied press passes to Scotusblog.com because its publisher argues cases before the court. 

As a result, no credentials were available to Scotusblog reporter Lyle Denniston, a veteran of the beat who built an enviable reputation during decades at the Baltimore Sun.

Curious and curiouser, the Senate coincidentally has withdrawn Scotusblog’s credentials without explanation.

The New York Times said SCOTUS information officer Kathleen Arberg explained that no credentials are being issued while the accreditation process is being reviewed. However, Arberg added, “Our practice has been to assess requests on a case-by-case basis and part of that assessment includes determining whether the applicant holds an active press credential. We have traditionally recognized congressional or other government-issued credentials for this purpose.”

But Scotusblog lost its Senate credentials and that’s where anarchy reigns. A private Standing Committee of Correspondents decides which competitors are allowed in the club.

Committee chairwoman Siobhan Hughes of The Wall Street Journal told The Times, “We don’t exclude people based on ownership or ideas — that would be censorship.” But, she added, “We do look at the structure of an applicant’s business and specifically whether the editorial side is independent of any group that lobbies the government or that is not principally a news organization.”

That’s hogwash. News media are big business and they lobby for laws and regulations that favor their search for profits. The Senate press gallery would be empty if this assertion had any integrity.

And finally, an effort to strengthen Colorado’s shield law came to nothing and effectively barred a Fox News reporter from the state. That brings me back to a story I’ve followed here for months. To recap: Fox News journalist Jana Winter reported that James Holmes mailed a notebook full of scary details to a psychiatrist before he killed 12 people in an Aurora, Colo., movie theater. 

Winter’s confidential sources were unnamed police officers. A Colorado judge ordered her to appear and name them.  

Winter fought back from home in New York. Her state’s highest court said she could ignore the Colorado subpoena because Colorado’s shield couldn’t protect her from conviction for contempt if she continued to refuse to name her sources.  

That’s when Colorado State Sen. Bernie Herpin drafted legislation to bring Colorado closer to New York’s stronger shield law. Colorado requires courts demanding the name(s) of confidential sources to meet three broad criteria by the weak standard of  “preponderance” of the evidence: “That the news information is directly relevant to a substantial issue involved in the proceeding; that the news information cannot be obtained by any other reasonable means; that a strong interest of the party seeking to subpoena the newsperson outweighs the interests under the First Amendment to the United States constitution of such newsperson in not responding to a subpoena and of the general public in receiving news information.” 

Herpin offered four tests and the more demanding standard of “clear and convincing” evidence for anyone seeking a subpoena to force identification of a confidential source: 

“The information was not obtained in confidence; the information is highly material and relevant; the information is critical to a material issue; and the information is not obtainable from another source.”

Failure to prove any one of those four tests would be fatal to a request for a subpoena to compel a “news person” to appear and name their sources. His changes would have provided Colorado journalists with absolute protections against being compelled to reveal confidential sources and unreported information. 

Herpin failed even after an amendment removed the absolute protection, the Colorado Freedom of Information Center (FOI Center) said. 

“It still would have raised the standard by which members of the news media in Colorado could be forced to testify about their reporting,” the FOI Center said approvingly. 

And Herpin’s proposal demonstrated how difficult it is for lawmakers to appreciate the changing news media. Herpin didn’t change the now-ancient definition of a protected journalist as a “news person” working for “any publisher of a newspaper or periodical; wire service; radio or television station or network; news or feature syndicate; or cable television system.”

It doesn’t include, even by implication, journalists using social media or the Internet. 

So where are we in our search for news we need? SCOTUS left an investigative reporter facing jail for practicing journalism and the nation’s highest court continues to outsource decisions on its press credentials to Senate reporters with a vested interest in their own monopoly. 

Dilemmas faced by The Times’ Risen and Scotusblog’s Denniston are reasons to eschew rules that define who is a journalist. That’s vital as new media open journalism in ways laws and traditions never imagined. 

CONTACT BEN L. KAUFMAN: letters@citybeat.com



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