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Government Investigations of Journalists. When Freedom of the Press, and Other Freedoms, Collide.

            I remember wondering that day as I was getting ready to go to work if I should pack a toothbrush. A Superior Court judge was set to rule on whether I and another reporter would be held in contempt of court and imprisoned for refusing to divulge our sources in one of the highest profile crimes in Massachusetts history, the Charles Stuart case. I didn’t take the toothbrush, but I did try to explain to my two young kids, before sending them off to school, why I might not be home that night.

            I was proud to have broken a big story, revealing Charles Stuart’s confession the day before his suicide that he had faked the murder of his pregnant wife – claiming it was done by a black carjacker when in fact he did it himself to collect insurance money so he could open a restaurant.  And I was proud to be risking my own personal freedom to stand up for Freedom of the Press. But I also remember how naive I realized I had been as I had cajoled my source into sharing a juicy news-breaking secret, by promising not to identify him/her. In the excitement of the journalistic chase, I had never seriously considered the risk I was taking. I had forgotten that the right of Freedom of the Press conflicts with a lot of other rights, and sometimes, for valid reasons, the press loses.

     I’m reminded of all this by news that the federal government has been snooping around on journalists, at Associated Press and Fox News, who have reported sensitive national intelligence information. Particularly reminiscent was this passage in the FBI affidavit seeking a search warrant for personal emails and phone records of Fox reporter James Rosen in 2010, after Rosen had reported on insider CIA intelligence about North Korea’s nuclear weapons plans. (The Washington Post obtained and published the affidavit.)

 “From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information about the Foreign Country,” the FBI agent wrote. “The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.” “Much like an intelligence officer would run an clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan,” Reyes said, making the reporter sound like a spy.

     Sounds pretty sinister, eh? It certainly does to people in the law enforcement and intelligence communities, who for very good reasons want to keep secrets secret and uphold laws passed to protect confidential information. Those laws exist because people’s lives, public safety, and national security generally can be jeopardized when the press reveals sensitive information, as the Justice Department is suggesting the Associated Press did by outing an intelligence source still active inside Al Qaeda in Yemen, a source that might have helped capture or kill one of Al Qaeda’s top bomb making experts.

     But to a journalist, that description of how Rosen acted is nothing short of professional praise. “…employing flattery and playing to (the source’s) vanity and ego…”, and arranging a “covert communications plan…” are exactly what I did to get my source to reveal Charles Stuart’s confession. Those are basic tools for anyone trying to persuade someone else to share a secret, whether the investigator is a cop or a spy or a reporter.

     Talking people into sharing what they know, so that information can then be shared with the public, is what journalists do. And while there are good reasons to keep some secrets secret, there are also very good reasons in a democracy for keeping the public fully informed, even when that means revealing secrets that put some people at risk. As Louis Brandeis said (three years before he was named to the Supreme Court) “the press is the greatest agency of good government” and “sunshine is the best disinfectant”.

     But generally, the juicier the secret and the bigger the scoop for the journalist who reveals it, the greater the damage done by its release, and the greater the risk for both the source and the reporter. But while the source usually has many risks at the top of their mind – they could lose their job, their freedom, their life –  the reporter, with the competitive and journalistic juices flowing, isn’t thinking about anything but The Story. They’re not thinking about going to jail if they ultimately have to decline to testify about who told them what. They’re not thinking about losing their privacy to law enforcement snooping into their emails and phone calls or following them around. And even if they are thinking about the repercussions of revealing sensitive information, and consciously considering that the revelation might put people at serious risk –journalists push those thoughts into the background, in pursuit of THE SCOOP.

     That is how we should want it out here in a democracy. We don’t want reporters to stop investigating government because they are worried government will investigate them. We want dogged journalists poking around and ignoring their personal risks to bring us the news we need to stay fully informed. (Before you complain about ‘the media’ the next time, remember that hundreds of journalists a year are killed for doing just that.)

     But any serious journalist has to understand and accept the risk they take when freedom of the press conflicts with other legal principles. A reporter who refuses to identify a source is denying a defendant their 6th amendment right to confront their accuser. A reporter who does identify a source, even indirectly, puts that source in serious jeopardy. A reporter who reveals a secret that could only have come from a spy puts that spy, and their work, and national security, in jeopardy.

     I didn’t go to jail. But I learned an important lesson, that seems pretty relevant as the controversies swirl over government investigations of Fox News’ James Rosen and AP. Journalists serve society in important ways, but sometimes to serve the public’s right and need to know, they put other people, and themselves, at risk. Putting the First Amendment first may be fine, but pretending it’s a blanket that should protect a journalist from all the ramifications and responsibilities of their work, is simplistic and naïve.


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