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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region Forums"The seizure of AP's phone records is legal"
The seizure of AP's phone records is legal, but that doesn't make it an acceptable course of action for the Justice Department to take.
On Monday, news broke that federal officials had secretly seized the phone records of Associated Press reporters. AP President Gary Pruitt reacted with understandable anger, calling the seizure "an overbroad collection of the telephone communications of The Associated Press and its reporters." Is Pruitt right? There are two questions that need to be answered. Was the seizure legal? And, if so, was it justified?
The answer to to the first question, at least based on what we know now, is "probably." A subpoena for records as part of an investigation, as opposed to a search warrant, does not require judicial approval. Intuitively, it may seem as if the First Amendment should shield the press from government investigators. But, at least under current Supreme Court doctrine, this isn't the case. In the 1972 landmark case Branzburg v. Hayes, the Court held that "[t]he First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation." This decision was controversial, and it could be argued that the federal courts should interpret the First Amendment to provide a more robust shield for journalistic activities. Based on what we know now, the subpoena was probably legal under existing law.
Of course, as the majority in Branzburg pointed out, even assuming for the sake of argument that the First Amendment doesn't provide for a journalistic privilege against investigation, legislatures are free to create a statutory journalistic privilege. Some state legislatures have done so. Congress has not, which is worth remembering when considering some of the rather opportunistic outrage from some Republicans about the AP story. Newly minted civil libertarian Darrell Issa, for example, has apparently undergone a remarkable transformation since he voted against legislation offering greater protections to telecommunications companies in 2007. And many a Republican (joined by a disgraceful number of Democrats) didn't object when the Bush administration engaged in warrantless wiretapping that plausibly violated the First Amendment and certainly violated valid congressional statutes.
But, the cynical and hypocritical nature of Republican opposition to the AP spying doesn't make it wrong. And, similarly, even if we assume for the sake of argument that the seizure of phone records was legal in this case, this doesn't justify the policy. The executive branch has the constitutional authority to engage in many things that aren't wise or prudent, and we should expect the Obama administration to do more than the minimum required by the Supreme Court when considering the free speech rights of journalists.
- more -
http://prospect.org/article/dojs-freedom-speech-breach#
That's the point a lot of people seem to be missing. You can be outraged about policy, but that doesn't make it illegal. I also remember a lot of people citing Branzburg v. Hayes during the Plame investigation.
The AP's being investigated by a grand jury for who they coordinated with in Congress over the leak.
http://www.democraticunderground.com/10022848186
Oh, this is good: House Republican 2012 hearing demanding DOJ subpoena reporters (video)
http://www.democraticunderground.com/10022847992
WHOA! WH Asks Sen. Schumer to Re-Introduce 'Media Shield Law' Bill
http://www.democraticunderground.com/10022846992
11/4/2009
Leaders of the Society of Professional Journalists welcome the compromise the Obama administration, senators and news organizations reached on a federal shield law that would protect journalists, their sources and the publics right to know. Although SPJ does not believe S. 448 is a perfect bill, the Societys leaders carefully examined the proposed legislation, and on behalf of its more than 8,000 members, have decided to support the protections granted to journalists.
<...>
Although SPJ leaders are pleased with many of the revisions in the latest compromise, such as a broader definition of who will be covered, they are disappointed that the new bill does not cover non-confidential information...However, SPJ is pleased that the revised legislation provides a shield for journalists protecting their confidential sources in criminal and civil proceedings. The bill covers subpoenas issued by grand juries and special prosecutors, in addition to prosecutors, civil litigants and criminal defendants. This revision requires that the party seeking confidential information first exhausts alternative sources; proves that there is a high need for the information; and conducts a public-interest balancing test before a federal court will compel disclosure of source information.
In criminal cases, reporters may be forced to demonstrate that there is clear, convincing evidence that the publics right to know is more important than disclosure of requested information. However, in civil proceedings, the legislation provides more protection, including in cases regarding the Privacy Act. The legislation also states that federal judges may overturn subpoenas for reporters testimony if the judges determine that the publics right to know outweighs the need for the government to know the source.
Another change in the legislation that is attracting attention is the inclusion of bloggers, freelance journalists and student journalists to the definition of protected individuals. To define a journalist, a test is applied to assess if the person is regularly gathering information for public dissemination, instead of by whether or not the journalist is paid by a news organization -- a definition that was included in previous drafts of the bill.
- more -
http://www.spj.org/news.asp?ref=936
Oh, this is good: House Republican 2012 hearing demanding DOJ subpoena reporters (video)
http://www.democraticunderground.com/10022847992
WHOA! WH Asks Sen. Schumer to Re-Introduce 'Media Shield Law' Bill
http://www.democraticunderground.com/10022846992
11/4/2009
Leaders of the Society of Professional Journalists welcome the compromise the Obama administration, senators and news organizations reached on a federal shield law that would protect journalists, their sources and the publics right to know. Although SPJ does not believe S. 448 is a perfect bill, the Societys leaders carefully examined the proposed legislation, and on behalf of its more than 8,000 members, have decided to support the protections granted to journalists.
<...>
Although SPJ leaders are pleased with many of the revisions in the latest compromise, such as a broader definition of who will be covered, they are disappointed that the new bill does not cover non-confidential information...However, SPJ is pleased that the revised legislation provides a shield for journalists protecting their confidential sources in criminal and civil proceedings. The bill covers subpoenas issued by grand juries and special prosecutors, in addition to prosecutors, civil litigants and criminal defendants. This revision requires that the party seeking confidential information first exhausts alternative sources; proves that there is a high need for the information; and conducts a public-interest balancing test before a federal court will compel disclosure of source information.
In criminal cases, reporters may be forced to demonstrate that there is clear, convincing evidence that the publics right to know is more important than disclosure of requested information. However, in civil proceedings, the legislation provides more protection, including in cases regarding the Privacy Act. The legislation also states that federal judges may overturn subpoenas for reporters testimony if the judges determine that the publics right to know outweighs the need for the government to know the source.
Another change in the legislation that is attracting attention is the inclusion of bloggers, freelance journalists and student journalists to the definition of protected individuals. To define a journalist, a test is applied to assess if the person is regularly gathering information for public dissemination, instead of by whether or not the journalist is paid by a news organization -- a definition that was included in previous drafts of the bill.
- more -
http://www.spj.org/news.asp?ref=936
Logical
(22,457 posts)Most people would have titled this post......
"The seizure of AP's phone records is legal, but that doesn't make it an acceptable"
only you would title it
"The seizure of AP's phone records is legal"
ProSense
(116,464 posts)"The seizure of AP's phone records is legal, but that doesn't make it an acceptable"
only you would title it
"The seizure of AP's phone records is legal"
...the title of the OP doesn't change the fact that the action was legal, but that doesn't mean that you have to find the title "acceptable."
You're feigning laughter (to hide disappointment) that the action was legal.
Logical
(22,457 posts)randome
(34,845 posts)And if a grand jury is involved, that changes the equation quite a lot, I think.
http://www.democraticunderground.com/10022848186
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[font color="blue"][center]Stop looking for heroes. BE one.[/center][/font]
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ProSense
(116,464 posts)I just don't like your headline.
"Fine with it being legal. But your misleading title is more proof of, well you know what."
...how is the title "misleading"? Is it "misleading" people about the legality?
I mean, the "acceptable" is subjective, an opinon about policy, and in no way changes the fact that the action is legal.
Logical
(22,457 posts)don't act like you didn't do it on purpose.
Be happy, you are getting free kicks without having to do it yourself.
"You cut it off only to show the legal part, not the doesn't make it an acceptable part, and...don't act like you didn't do it on purpose. "
Yes, I clearly did it "on purpose."
Are you disputing the point made in the title?
No, you nitpicking because you're pissed about something.
Logical
(22,457 posts)can always edit the post and add the real articles title instead of your edited version.
ProSense
(116,464 posts)"Are you disputing the "doesn't make it an acceptable" part? If not then why not include it? You...
can always edit the post and add the real articles title instead of your edited version. "
...this is my OP, not yours. I don't want to edit it because there is nothing wrong with it.
Logical
(22,457 posts)part that you don't like. Use the actual title instead of your abridged version.
"LOL, not accurate but makes your point I guess. "
...it make my point, and remember:
"Fine with it being legal."
http://www.democraticunderground.com/?com=view_post&forum=1002&pid=2850169
See, you agree with my point.
Logical
(22,457 posts)it is telling and also wrong. But carry on. Lots of Kicks for you. So celebrate!
ProSense
(116,464 posts)Logical
(22,457 posts)ProSense
(116,464 posts)the best part:
"I shudder to think that, if it hadn't been for the DOJ's supposedly 'strict' rules for acquiring evidence from news organizations, AP might not have ever learned about this administration's assault on its First Amendment rights.
"This incident proves once again the need for a federal Shield Law. Prosecutors, unlike reporters, have subpoena power to compel testimony, yet lazy prosecutors often prefer to go after reporters' notes and records rather than do the hard investigative work to dig out information without trampling on the First Amendment."
I understand why the SPJ is outraged, and it doesn't change the fact that the action was legal.
Thanks for the link.
Logical
(22,457 posts)ProSense
(116,464 posts)http://www.democraticunderground.com/10022850304
Logical
(22,457 posts)ProSense
(116,464 posts)MjolnirTime
(1,800 posts)Logical
(22,457 posts)bluestate10
(10,942 posts)word about any democrat from that poster.
dkf
(37,305 posts)That's a great way to keep the public from knowing what is going on. Yay for the administration right?
The freedom of the press is the people's way of knowing what is going on in their government. This doesn't violate the law, it violates the people's trust.
"Well if you've put the fear of God in whistle blowers and sources you don't need to tap anyone."
Why not call those who outed a CIA agent a "whistleblower"?
Investigating Plame was justified, and so is taking action of a similar nature.
dkf
(37,305 posts)reporters.
Why didn't they get the records for the entire NYT to find Lewis Libby?
Is that the government you want?
Lady Freedom Returns
(14,120 posts)I have had to deal with this type of thing before. Had a "Crash Coarse" if you will back in the day.
They are to tell the News agency about it beforehand, then both sides go to talk with a judge. The judge would take a look, make sure that all other avenues have been taken, then make sure the scope is not to large.
And with it being the Department of Justus that was doing it, Attorney General Eric H. Holder was the one to sign off after all this. He was not supposed to pass it off to ANYONE!
I state what Rep. Zoe Lofgren (D-Calif.) said: It seems to me clear that the actions of the department have in fact impaired the First Amendment.
This is a bad precedent.
Lady Freedom Returns
(14,120 posts)Sad part is many can't seem to understand this. And many don't understand that there are regulations and procedures for getting this info that were jumped over. They did not want to wait on the courts so they just threw all that was put in place after Watergate out the window.
That is why they MUST pass the "Press Shield Law" since DOJ had decided they can side step procedures. Hopefully they will get it instated before the US citizens are totally blinded.
Rep. Zoe Lofgren (D-Calif.) said: It seems to me clear that the actions of the department have in fact impaired the First Amendment.
http://www.washingtonpost.com/politics/on-capitol-hill-holder-to-face-questions-on-ap-phone-records-irs-scandal/2013/05/15/d0dfc52c-bd70-11e2-89c9-3be8095fe767_story.html
Matariki
(18,775 posts)*sigh*
Cha
(297,154 posts)outfit when FACTS are presented.
SamKnause
(13,091 posts)Everything that is ILLEGAL is LEGAL in this country.
The U.S. does not play by the rules.
They make them up as they go.
Cha
(297,154 posts)detracts nothing from the facts in the OP.
Harmony Blue
(3,978 posts)Gitmo is still up and running? Why?
kentuck
(111,079 posts)...if they want to do anything about it?
Instead, they continue to pollute the environment with their wind and bluster.
Deep13
(39,154 posts)ProSense
(116,464 posts)Two days ago, Michael Isikoff made this point:
But they`re regulations, they`re not laws. And this is a criminal investigation and they do have the absolute legal authority to do this any way they want. But they would have to explain why they`re not following their own guidelines and regulations.
http://www.nbcnews.com/id/51878006/ns/msnbc-rachel_maddow_show/
Cha
(297,154 posts)thanks ProSense
markiv
(1,489 posts)Taverner
(55,476 posts)ProSense
(116,464 posts)Taverner
(55,476 posts)ProSense
(116,464 posts)SidDithers
(44,228 posts)Sid