In the wake of the Justice Department's chilling seizure of Associated Press phone records, the Department is now asserting that a Fox reporter violated the law by reporting the news.
That's right. The federal government has never prosecuted a journalist for reporting on actions the government wants to keep secret. It is not illegal for a journalist to disclose classified information. But using the ancient, much-abused Espionage Act of 1917, the Justice Department recently asserted that a reporter had violated the law by trying to get a government employee to disclose information.
On Tuesday, White House spokesman Jay Carney had declined to answer a question about criminalizing journalism. But on Wednesday he tried to walk back the position taken by the Justice Department, saying President Obama did not want journalists prosecuted for doing their jobs.
The unprecedented assertion was made by FBI agent Reginald B. Reyes in a search warrant application that was ultimately approved by a judge. The warrant allowed Reyes to snoop through the phone records of Fox News correspondent James Rosen. Rosen had sought a State Department adviser's analysis about actions North Korea might take.
Journalists and news organizations had been outraged when they learned that the Justice Department had secretly subpoenaed a huge swath of Associated Press phone records in its search for a government leaker in another case. AP head Gary Pruitt told CBS May 19, 2013 that the Justice Department move was "unconstitutional" and was already drying up reporters' sources. The AP reported: "Pruitt said it has made sources less willing to talk to AP journalists and, in the long term, could limit Americans' information from all news outlets."
The Society of Environmental Journalists protested the Justice Department move, as did a coalition of some 50 news organizations.
But the revelations about FBI snooping on Fox's Rosen seemed to take the Obama administration's assault on press freedoms to another level. The search warrant application charged that Rosen had broken the law as a "co-conspirator." Although Rosen himself has not been officially prosecuted, the judge's approval could open the door to criminal prosecution of a journalist merely for trying to get information from a source.
“The Justice Department’s decision to treat routine newsgathering efforts as evidence of criminality is extremely troubling and corrodes time-honored understandings between the public and the government about the role of the free press,” said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press.
- "White House: Reporters Shouldn’t Be Prosecuted,"  Associated Press, May 22, 2013, by Josh Lederman
- "A Rare Peek into a Justice Department Leak Probe,"  Washington Post, May 19, 2013, by Ann E. Marimow.
- "2 SCOTUS Judges in 1971: Espionage Act Doesn't Apply to the Press,"  The Atlantic, May 21, 2013, by Conor Friedersdorf.
- "Obama DOJ Formally Accuses Journalist in Leak Case of Committing Crimes,"  The Guardian, May 20, 2013, by Glenn Greenwald.
- "Statement of Reporters Committee's Bruce Brown on Justice Department Investigations of Journalists,"  Reporters Committee for Freedom of the Press, Release of May 21, 2013.
- SEJ Statement on Justice Department Seizure of AP Phone Records,  May 14, 2013.
- "J-Groups: Justice Dept. "Dragnet" Threatens All Reporting on Government,"  EJToday Headlines, May 14, 2013.
- "AP CEO Calls Records Seizure 'Unconstitutional',"  Associated Press, May 20, 2013, by Philip Elliott.
- "The Justice Department and Fox News’s Phone Records,"  New Yorker, May 21, 2013, by Ryan Lizza.
- "Scarborough Rails Against Justice Dept Snooping on Fox News: ‘More Damning’ To Go After ‘The Opposition’,"  Mediaite, May 22, 2013, by Meenal Vamburkar.
- Opinion: "In AP, Rosen Investigations, Government Makes Criminals of Reporters,"  Washington Post, May 21, 2013, by Dana Milbank.
- "Fox Anchor: Justice Department Seized Phone Records for Reporter James Rosen’s Parents,"  Washington Times, May 22, 2013, by David Sherfinski.
- "Is the Government Spying on Reporters More Often Than We Think?"  Mother Jones, May 17, 2013, by Julian Sanchez.