“It won’t take me long to alienate everyone in the room,” Jeffrey Toobin told an audience in New York Friday. “For better or worse, it has been clear there is no journalistic privilege under the First Amendment.”
The New Yorker staff writer and CNN commentator was appearing on a panel as part of a George Polk Awards conference called Sources and Secrets at the Times Center. A lot has already been written about the conference (links below), so I’m going to pull out a theme that appears again and again in my notes: How much protection do reporters really have with regard to sources, and how much, if any, protection would a federal shield law give them?
New York Times reporter James Risen, who is fighting an order that he testify in the trial of Jeffrey Sterling, a former CIA officer accused of leaking information to him, opened the conference earlier by saying the Obama administration is “the greatest enemy of press freedom that we have encountered in at least a generation.” The administration wants to “narrow the field of national security reporting,” Risen said, to “create a path for accepted reporting.” Anyone journalist who exceeds those parameters, Risen said, “will be punished.”
The administration’s aggressive prosecutions have created “a de facto Official Secrets Act,” Risen said, and the media has been “too timid” in responding.
Toobin appeared on a panel that followed, moderated by Times Supreme Court reporter Adam Liptak, who announced that if he weren’t a paragon of journalistic detachment, he’d say “the persecution of James Risen is a scandal.” The attorney Laura Handman noted that the U.S. Department of Justice’s new guidelines for accessing journalists’ records carve out a big space for the government to decide what constitutes “ordinary newsgathering.”
The panel mentioned Risen and Fox journalist James Rosen, who an FBI agent suggested was a “co-conspirator” in another leak investigation. Toobin noted that the number of journalists actually prosecuted by the Obama administration is zero. Not all leaks are equal, and not all should go unpunished, he argued, citing the investigation that snagged Rosen in particular. After Liptak said government officials sometimes mention that they’ve been elected and journalists haven’t, Toobin said: “The answer to your question is quite clear: The Constitution elected us.”
“So you’re willing to concede that the First Amendment protects the press?” Liptak asked Toobin, to some laughs.
U.S. Sen. Chuck Schumer told the room he expects a federal shield bill to pass this year. Sens. Dianne Feinstein and Dick Durbin wanted to narrow the definition of a journalist from his original bill, he said, so people who write for free may not get as much protection under it as journalists who get paid for their work would. But, he said, the legislation has a “safety valve” that would afford protection if a judge decides whether any work in question is “in the interest of justice.” Schumer also called the new DOJ guidelines “not good enough” but offered “some improvement.”
Under the bill, “Risen would have a day in court,” Schumer said. Marshall Project Editor-in-Chief Bill Keller asked the senator whether Glenn Greenwald would be protected under his bill. Schumer said he “couldn’t give you an answer off the top of my head.” He left, and a panel discussed the prospects of his bill. A shield law would undermine the government’s ability to investigate leaks, Kenneth L. Wainstein, a former assistant attorney general for national security and Homeland Security adviser, said. Prosecutions, Wainstein said, are meant to “deter other would-be leakers.”
McClatchy reporter Jonathan Landay said he no longer emails sources and that a lot of the investigation work on McClatchy’s story about the CIA possibly spying on a Senate committee was done by a 22-year-old who “doorstepped” committee members. “I know where a lot of payphones are in Washington, D.C.,” Landay said. Journalist Quinn Norton said she’d like to see legislation that recognizes the techniques of surveillance themselves create “a chilling effect on journalism.”
The government was a little outmuscled in the conference. In addition to Wainstein, its point of view was mostly carried forward on panels that included Robert L. Deitz, a former NSA general counsel and senior councillor to the CIA and Robert S. Litt, the general counsel of the U.S. Office of the Director of National Intelligence. When Bob Woodward asked Deitz if leaks have imperiled the American people, he said yes. Sometimes, he said, “the leak is the harm.” By definition, he said, many of the leaks discussed are prima facie felonies. How do you put a line around one felony and say don’t investigate it, he asked. The Times’ Mark Mazzetti asked him about leaks that come from the administration. Those make the administration lose the high ground, Deitz replied.
Litt said the press “does publish things from my perspective that risk hurt” to national security. “We ban drunk driving because drunk driving increases the risk of accidents,” he said. “That doesn’t mean that any particular drunk driver causes an accident.”
“Is journalism drunk driving?” New Yorker Editor David Remnick asked Litt. “No,” he replied.
Some other coverage of the conference:
“The Story of Our Lives” at the Sources and Secrets Conference (Hamilton Nolan, Gawker)
Sources and secrets (Ben Adler, CJR)
Chuck Schumer: Shield bill could pass Senate (Tal Kopan, Politico)
Is Revealing Secrets Akin to Drunk Driving? Intelligence Official Says So (Dan Froomkin, The Intercept)