Gene Policinski

Senior Vice President/Executive Director, First Amendment Center

Thursday, May 23, 2013

Freedom to report the news requires the freedom to gather it.

In the months ahead, that basic concept so central to the First Amendments protection of a free press will also be at the heart of the ongoing debate over how far government officials may go in pursuit of those responsible for leaking classified information to journalists.

The debate kicked off new fervor with disclosure of a wide search conducted by the Department of Justice in which it seized phone records of The Associated Press that spanned two months, multiple offices and even some personal lines.

The bushel-basket, clandestine nature of the seizure meant AP was not given the opportunity to argue for even a more-focused search on a specific leak leaving the work of up to 100 journalists on multiple stories exposed to government scrutiny.

Then there was the report of the outright label of criminal conduct, as a co-conspirator and/or aider and abettor, attached by an FBI agent to James Rosen, chief Washington correspondent for Fox News. Justice Department officials apparently believe Rosen solicited confidential information from a U.S. State Department source about a 2009 pending North Korean missile launch.

In seeking a search warrant in 2010 to secretly examine Rosens e-mails, the agent said the journalists tactics included employing flattery and playing to the sources vanity and ego. The source later was indicted, and reportedly the FBI also riffled through Rosens e-mails for at least 30 days, along with extensive review of phone data and computer records of Rosens trips in and out of the U.S. State Department buildings.

Mass collection of journalists phone call information. Threats of criminal liability aimed at reporters who get information from confidential sources in the government. The idea that journalistic flattery equals espionage. Combined with an unprecedented six prosecutions for alleged leaks double the number under all previous administrations combined it all adds up to a not-so-subtle message: Dont ask, dont tell.

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Freedom to report the news requires the freedom to gather it