Spying On Reporters: A Historical Perspective

press spying by Tom White

Charles J. Glasser, Jr., Esq. Professor, Media Ethics and Law, NYU
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The news cycle being what it is, the arrest of former security director for the Senate Intelligence Committee James Wolfe and the governments’ scooping up emails between him and his paramour Ali Watkins, a New York Times reporter, has been pushed off the front page. If Wolfe pleads guilty or goes to trial it might make the news for a little bit.

Here’s what to expect: blustery condemnations from press freedom advocates; an intransient defense of spying on reporters based on the interest of “national security”; murmurings about the development of a federal shield law that goes nowhere; and, finally, the matter will be flushed down the memory hole.

On to the next outrage.

Until it happens again.

Lather, rinse, repeat.

While many commentators see the Wolfe/Watkins episode as proof positive that President Trump is waging a “war on the press,” more prescient media critics saw this coming and are not afraid to remind people that much of the groundwork of spying on reporters was laid by President Obama. You would think that intrusion into the private communications of an American citizen (especially a reporter) would be anathema to a “progressive” administration. But appearances can be deceiving.

The Obama legacy, its roots, and “what about?”

Media critic (and no fan of Trump) Margaret Sullivan reminds us that “no one should be surprised” given that “Trump’s anti-press bluster aside, there’s a clear blueprint to follow — courtesy of Barack Obama, who once claimed that he would be the most transparent president ever but proved to be no friend to press rights.”

Indeed, the ACLU’s Gabe Rotman pointed out as far back as 2014 that “the Obama administration has secured 526 months of prison time for national security leakers, versus only 24 months total jail time for everyone else since the American Revolution.” Put another way, in President Obama’s 26 months in office, civilian and military prosecutors have charged five people in cases involving leaking information, more than all previous presidents combined.

President Obama’s legacy should be taken neither as a starting point, nor as a tennis ball in a back-and-forth game of “what about”? In one way or another the intrusion into press freedoms is a long vine with roots that go back as far as 1917, beginning with the passage of the now infamous Espionage Act. Although Wolfe’s arrest — like the charges against Michael Flynn — are based on “making false statements” to federal investigators (an often-specious claim) leaking of government documents is the impetus for these investigations.

Where it started: punishment for publishing

It’s worth noting that in the first phase of this history, the criminal prosecutions derived from already published material. One of the most famous cases, Schenck v. U.S., saw the Supreme Court justify criminal prosecutions under the Espionage Act against Socialist party members for distributing leaflets encouraging young men to avoid serving in World War I. That case gave us Justice Holmes’ infamous dictum: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

The Espionage Act itself was not passed without some degree of worry that the language was too broad, and the law could be abused too easily. Senator Charles Thomas of Colorado had serious concerns, warning: “I very much fear that with the best of intention we may place upon the statute books something that will rise to plague us in the immediate future.” Peter Sterne of the Freedom of the Press Foundation reported Senator Thomas’ objections in more detail, saying:

 “Of all times in time of war the press should be free […] That of all occasions in human affairs calls for a press vigilant and bold, independent and uncensored. Better to lose a battle than to lose the vast advantage of a free press.”

Nixon kicks it up a notch. Obama follows suit

As we all know, the Espionage Act not only became law, but was used as a cudgel against dissent. Up until the Pentagon Papers case, it was an excuse for prior restraint. In that case, it was the leaker Daniel Ellsberg who was the target of criminal charges, but the Nixon administration inched closer to the newsroom by seeking an injunction to prevent The New York Times from publishing the classified documents.

In his 2010 book “Poisoning the Press: Richard Nixon, Jack Anderson, and the Rise of Washington’s Scandal Culture,” author Mark Feldstein revealed that Nixon’s administration wiretapped journalists, put them on enemies lists, audited their tax returns, censored their newspapers and moved to revoke their broadcasting licenses. Muckraker Jack Anderson was a particular thorn in Nixon’s side since 1952, when his investigative work instigated Nixon to give his famous “Checkers” speech. Nixon would later tell his aide, Charles Colson, to “pick the 20 most vicious Washington reporters” and destroy their reputations by any means necessary. Anderson was chief among them.

Despite the tremendous victory of The Washington Post and The New York Times in the Pentagon Papers case — prior restraints are legally dead in the water — Nixon’s proclivity for retribution against critical reporters would resurface more than 40 years later. Award-winning former CBS reporter Sheryl Attkisson found during the Obama administration that her computer had been surreptitiously accessed and that forensics indicated that the intrusion came from government sources. Attkisson brought suit in 2015. The Justice Department, under Holder, Lynch and now Sessions’ watch have dragged their heels and resisted discovery at every turn. A Virginia federal judge dismissed her case and Attkisson filed an appeal in June 2018.

The parallel between the actions of Nixon and Obama have not gone unnoticed. To be fair, while mainstream media indubitably tried to help Obama win election and reelection, the actions of his Justice Department against reporters did not go entirely unchallenged. In 2013 The New York Times published a surprisingly critical editorial after it was disclosed that the Justice Department had intercepted communications from the Associated Press and others. Associated Press CEO Gary Pruitt said that “We regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.” The GOP also chimed in when Michael Steel, a spokesman for House Speaker John Boehner said, “The First Amendment is first for a reason […] If the Obama administration is going after reporters’ phone records, they better have a damned good explanation.”

Unfortunately, the mainstream press never really pushed for one. Democratic political operatives took advantage of this quietude, and just as Nixon wanted to destroy reporters’ reputations by any means necessary, Democratic Party operatives successfully launched a gaslighting campaign whereby anyone pushing for answers (like Sharyl Attkisson) was painted as a right-wing nut or conspiracy theorist. Questioning the Obama administration’s spying on reporters became a toxic enterprise: any journalist asking these questions is branded as unreliable, insane or just a right-wing tool. Of course, asking the same questions about the Trump administration’s abuse of power makes you a “truth-seeker” and a Champion of the Resistance.

The problem of notice and due process

As a legal matter there are some complications in the dynamics that need to be pointed out. The most troubling element in the Wolfe/Watkins affair is that like the spying on the Associated Press, Sheryl Attkisson and others, the information was scooped up and only after it was obtained did the government provide notice to the news organizations and reporters. That is contrary to the Department of Justice guidelines issued by Attorney Gen. Holder in 2015, which turned out to be mere lip service:

“The affected member of the news media shall be given reasonable and timely notice of the Attorney General’s determination before the use of the subpoena, court order, or warrant, unless the Attorney General determines that, for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.”

At this point it should be pretty clear that there are two problems with this. First the “threat to the integrity of the investigation” exemption is so overbroad it justifies the denial of notice under almost any circumstance. Denial of notice presents the second problem: while there is no federal shield law, there is a common law right of confidentiality of reporters’ unpublished notes or communications.

The appropriate way to deal with this at the moment would be the serve a subpoena on the news organization and give it the opportunity to convince a judge in court that the material should be kept confidential. At the same time, the government would have an opportunity to convince the same judge that there is indeed a legitimate basis of facts requiring disclosure.

I have written about and militated for the passage of a federal shield law since 2013.

Interestingly, it was championed not once but twice by Mike Pence, then a Republican Indiana Senator, and shot down by California’s Dianne Feinstein, one of the most ardent “progressive” senators today.

There is a popular misconception that shield laws are absolute. They aren’t. Most of them have varying exemptions by which a prosecutor can overcome the shield. Chief among them is certainty that the information is not available anywhere else, and proof of absolute necessity in order to prevent or punish a crime.

No easy fix: little by little

To be sure, a shield law is not a cure-all. One of the difficult real-world problems is “collateral collection.” The emails of a suspected bad guy might turn up communications with a journalist. Are those emails “off the table”? Should investigators halt the investigation and put the reporter on notice? Can the reporter be barred from disclosing the fact that a probe is ongoing?

Even more challenging is how are investigators supposed to know which email addresses belong to a journalist who is not famous and uses a generic mail account such as Google or Yahoo? And don’t get me started on how governments are allowed to define “journalist” as opposed to “citizen bloggers.”

But in the same way that the problem manifested little by little, the solution can be arrived at in the same way. A properly crafted federal shield law would at the very least give notice to a newsroom that certain material is sought and has a chance to make its case in court. Cheerleaders though many may be, all reporters – even those who turned a blind eye to Obama’s abuse of power – deserve Due Process.

Charles Glasser (@MediaEthicsGuy) was a journalist in the 1980s and later studied at New York University School of Law. After several years as a First Amendment litigator, he became Bloomberg News’ first global media counsel. He is the author of “The International Libel and Privacy Handbook”, teaches media ethics and law at New York University and also lectures globally and writes frequently about media and free speech issues for Instapundit and other outlets.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.