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"The seizure of AP's phone records is legal" [View all]
The DOJ's Freedom of Speech Breach
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#
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
SPJ supports shield law compromise
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 public’s right to know. Although SPJ does not believe S. 448 is a perfect bill, the Society’s 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 public’s 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 public’s 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
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 public’s right to know. Although SPJ does not believe S. 448 is a perfect bill, the Society’s 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 public’s 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 public’s 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
SPJ supports shield law compromise
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 public’s right to know. Although SPJ does not believe S. 448 is a perfect bill, the Society’s 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 public’s 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 public’s 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
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 public’s right to know. Although SPJ does not believe S. 448 is a perfect bill, the Society’s 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 public’s 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 public’s 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
47 replies
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