Obama administration risks serious damage to press freedom

Commentary: Attorney General Holder is tossing aside restraint that prosecutors have exercised for decades. And it seems unlikely he would have acted without presidential knowledge.
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Eric Holder

Commentary: Attorney General Holder is tossing aside restraint that prosecutors have exercised for decades. And it seems unlikely he would have acted without presidential knowledge.

Technology changes, but the basic tenets of journalism and the codes that govern reporting in a free society remain remarkably the same.

Certainly that is the case after nearly half a century of struggles to protect the flow of information by shielding reporters from over-aggressive governmental officials who try to use them as an arm of the law.

Today, reporters face an attack from a surprising source: the Obama administration, which promised transparency of unprecedented levels. As the AP and others are finding, the administration's idea of transparency is to peer into their notebooks — or phone records — in an effort to punish sources who shared important information with the public.

Like so many other outrages, the struggle today really dates to Richard Nixon and his paranoia about leaks and the press in general.

We were working with typewriters in those days and landline phones easy to tap, but until Nixon’s attorney general John Mitchell began looking for reporter notes as a way to pursue radicals and miscreants, only a few elite investigative reporters really had much to fear from prosecutors.

Relations with sources were informal in 1960 when I joined the morning daily in Salem, The Oregon Statesman. As I moved into covering politics I had to frequently decide which political talk was gossip, which was worth promising confidentiality in hopes of opening up a good story, and when to simply tell a source that everything was on the record. But I don’t recall a newsroom protocol or direction from an editor, as would likely the be the case today; it just sort of happened as a young reporter learned who could be trusted and who was manipulative.

The late Annette Buchanan is now a footnote in press history, but in 1966 the young editor of the University of Oregon’s Daily Emerald defied a subpoena by the Lane County District Attorney to produce the names of students who had talked to her about using marijuana. The case was a wake-up call of sorts, producing national attention, but it quickly faded as she paid a $300 fine for contempt of court but avoided jail. The Oregon Supreme Court later denied her appeal. Ironically, the decision was written by Justice Alfred (Ted) Goodwin, a former Eugene Register-Guard city editor and staunch First Amendment defender. "Nothing in the state or federal constitution compels the courts, in the absences of statue, to recognize such privilege," Goodwin ruled, and we were put on notice.

A few years later, the press was hip-deep in Watergate and Nixon had reporters on his infamous “enemies list.” We became as paranoid about Nixon as he was about us, and in 1970 a group of D.C.-based reporters formed the Reporters Committee for Freedom of the Press. I served several years on the national steering committee but RCFP was, and continues to be, focused on the nation’s capital. The committee is deeply involved in the objections to the Obama administration's actions, which it calls "extremely troubling," and organized a discussion in Seattle.

Even then we pondered how to deal with the “who is a reporter” issue, which in this modern age of bloggers, tweets and texts and all the paraphernalia of personal media will continue to dog legislators hoping to finally pass a federal shield law. In the 1970s it was the alternative press, often with very flexible journalistic standards and a favorite of young war resisters and drug users.

Alternative papers were a natural target, but ironically the first case that really drew our attention involved The Grey Lady herself, The New York Times. Reporter Earl Caldwell wrote a story in 1970 based on confidential interviews with several Black Panthers. Caldwell refused to talk and his case was combined with two others and found its way to the U.S. Supreme Court. In the case of Caldwell and the other defendants, there could be no question about their status as reporters; the challenge was to wrap the First Amendment around their shoulders.

The result was a cup half-full; in 1972 the Court ruled 5-4 that reporters had no First Amendment right to protect sources, but that Congress and the states could write such laws; Branzburg v. Hayes is still controversial. The Court had agreed with Oregon’s Justice Goodwin and the ruling, combined with memory of the Annette Buchanan case, brought a reporter-shield law in Oregon in 1973. Reporters worked with Gov. Tom McCall, a former newsman, to gain legislative approval. (Washington state came late to the party, passing a shield law in 2007, but Washington state judges were generally sympathetic in First Amendment cases)

McCall was that wonderful exception to the rule that politicians harbor deep distrust of reporters and have no compunction about lying to them and concealing public information. Reporters on the other hand distrust most politicians and adopt the axiom, “If your mother says she loves you, check it out.” It’s a double-edged rule, in effect.

Nixon’s press relations were the epitome of that rule. I would like to think it’s not the case with President Obama, but I’m not sure and the case of the Justice Department vs. the Associated Press makes me wonder if Obama has made the classic mistake of picking a fight with folks who buy ink by the barrel (or store information in a cloud).

I say that because one of the battles we won at the Reporters Committee was a new protocol for dealing with confidential information. It was negotiated by Jack Landau, an in-your-face reporter and lawyer who became our first executive director. Landau briefly served as Attorney General Mitchell’s spokesman and when it became apparent he was in the wrong crowd he joined the RCFP in 1970 with a vengeance. But he kept personal ties with Mitchell and negotiated new rules for reporter subpoenas, among them that the AG personally must approve these sensitive subpoenas, only after attempts have been made to negotiate with the media involved.

Those rules are still in effect, although battered and beaten a few times; therefore it tells me that Attorney General Eric Holder had to know about the AP subpoenas. By extension, that reaches into the Oval Office.

Obama’s promises of transparency have produced a lot of data on the Internet, but that does not excuse intimidation of legitimate media sources. My old organization was joined by 50 media organizations in protesting mightily.

So one rule hasn’t changed since I was a plebe reporter: Don’t fall in love with a politician; they will disappoint you every time.

More confusing are rules about who is a journalist, to be sheltered by law, as against folks who only rant and rave without the foggiest notion of ethics or even common sense. I don’t pretend to draw the line, but as Congressional sponsors of reporter-shield legislation attempt to revive our failed efforts of four decades, that will always be raised as an objection by those who want no shield at all.

For example, as a Crosscut writer I would clearly have protection against subpoena, but if subpoenaed for notes of interviews I did as an academic writing a short history of the Reporters Committee’s early years, I would not be covered, at least under current court rulings.

My old managing editor, a crusty veteran of the AP, always snorted when we younger guys talked about reporter shield. “The First Amendment is your damn shield,” he barked, and half a century later I think he was right.

It's a pity the courts don’t agree. 


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About the Authors & Contributors

Floyd McKay

Floyd McKay

Floyd J. McKay, professor of journalism emeritus at Western Washington University, was a print and broadcast journalist in Oregon for three decades.