First Amendment: Democrats and Republicans Alike Have Trampled on Free Press Rights

By Edward Fitzpatrick

Perhaps it comes as no surprise that prosecutors in President Donald Trump’s Justice Department secretly seized years’ worth of a New York Times reporters’ phone and email records as part of a leak investigation.

But no one appreciates the danger of such a step more than James Risen, the former New York Times reporter who faced the very real prospect of jail time as part of a leak investigation by President Obama’s Justice Department.

Risen, who received the New England First Amendment Coalition’s Stephen Hamblett First Amendment Award in 2014, is now director of the Press Freedom Defense Fund. When news broke that the Justice Department had seized reporter Ali Watkins’ data, his group issued a statement saying: “The Trump administration’s draconian surveillance and targeting of a New York Times reporter is an ominous step toward a more authoritarian approach to the press by a White House that has already made it clear that it is at war with journalists, who are performing the daily public service of keeping Americans informed.”

On June 7, James A. Wolfe, a former Senate Intelligence Committee aide, was charged with lying to investigators in a leak investigation that included seizing records from Watkins, who worked at BuzzFeed News and Politico before joining the Times. The indictment cites text messages between Wolfe and Watkins, who had a romantic relationship, before her 2017 BuzzFeed story about former Trump campaign adviser Carter Page’s contacts with Russians.

In 2016, Risen had issued a warning in a Times opinion piece titled, “If Donald Trump Targets Journalists, Thank Obama.” He noted that under Obama, the Justice Department prosecuted more cases involving whistleblowers and leakers than all previous administrations combined, secretly obtained phone records of Associated Press reporters and labeled a Fox News reporter a “co-conspirator” in a leak case.

Keep in mind: These actions were taken by an administration headed by a president who once taught constitutional law and who vowed “an unprecedented level of openness” during his administration. (As it turned out: Not so much!)

By contrast, we now have an administration headed by a president who calls the media “scum” and brands major media outlets “the enemy of the American people.” And we have an attorney general, Jeff Sessions, who dodged questions about whether he would subpoena or prosecute journalists for doing their jobs and who says he “more than tripled” the number of active leak investigations compared with the number pending at the end of the Obama administration.

Walter V. “Robby” Robinson — a NEFAC board member who led the Boston Globe Spotlight Team’s investigation that uncovered the Catholic Church sexual abuse scandal (and who is played by Michael Keaton in the movie “Spotlight”) — said the seizure of Watkins’ records is hardly surprising.

“The surprise is that it took this long in this administration,” he said. “It’s an indication of the serious pushback against reporters reporting on national security issues.”

The only thing that stopped Risen from going to prison was that “Obama’s base would not have stood for that,” Robinson said. “If we had this president in the same situation, what would the base have said? ‘Lock ‘em up!’ The Trump base — look at what they did to reporters at rallies.”

Karen Bordeleau, president of NEFAC and a former executive editor of The Providence Journal, said the seizure of Watkins’ phone records and emails represents “a severe violation of press protections guaranteed by the First Amendment.”

“Journalists have mined information from government sources since the birth of the republic,” Bordeleau said. “Throughout history, many of those sources’ consciences compelled them to wave a red flag on ‘classified’ material. If it were not for Daniel Ellsberg, the U.S. would certainly have shed more blood in Vietnam. If it were not for Edward Snowden, we might still be under the illusion that Big Brother has better things to do than monitor our personal calls and emails.”

Breaking such stories is critical to the nation’s well-being, Bordeleau said. “And the journalists who report them should be protected — not harassed or spied on as if they were the enemy,” she said.

So what can be done if presidents, both Democratic and Republican, are willing to trample on free press rights while hunting down the source of embarrassing leaks?

Well, for one thing, citizens at all points of the political spectrum should recognize the value of a vibrant, unfettered press. If your party is in power now, realize it will someday be on the outside looking in, and we all benefit when watchdog journalists hold the powerful accountable, using a variety of sources, including whistleblowers.

Also, citizens at all points of the political spectrum would benefit from a federal media shield law, which would provide limited protection to journalists who receive information from whistleblowers.

“The Trump Administration has made clear since Day One how it feels about journalists,” said Justin Silverman, executive director of NEFAC. “The targeting of reporters and their sources won’t stop unless we have a strong federal shield law. Now’s the time for lawmakers to pass one. Government accountability is a bipartisan interest, and protecting our press should be one too.”

Edward Fitzpatrick is director of media and public relations at Roger Williams University and a member of NEFAC’s Board of Directors. This post originally appeared on the university’s First Amendment blog.

Above photo provided by Flickr user Donkey Hotey and used with cropping under a CC 2.0 license

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Major Supporters of NEFAC include the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, The Boston Globe, Boston University and WBUR-Boston.

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