On The Front Lines

In a Blow to Freedom of the Press, U.S. Supreme Court Refuses to Protect Reporter from Obama Administration Prosecution Over Refusal to Reveal Sources

WASHINGTON, D.C. — In a severe blow to the First Amendment guarantee of freedom of the press, the U.S. Supreme Court declined earlier this week to hear the case of New York Times reporter James Risen, a Pulitzer Prize-winning journalist who writes about national security issues and is being targeted by the Obama Administration for refusing to reveal a confidential source. By refusing without explanation to hear Risen’s case, the Supreme Court leaves the field open for the Obama Administration to pursue contempt charges against Risen, including potential jail time. Despite repeated declarations championing the importance of a free press and “investigative journalism that holds government accountable,” President Obama’s administration has been unrelenting in its pursuit and persecution of journalists to such an extent that Risen called the Obama administration “the greatest enemy of press freedom that we have encountered in at least a generation.”

“Given the tendency on the part of today’s news agencies to pass off trivia and entertainment as real news, it’s easy to lose sight of the role the media is supposed to play as a check on the government’s power grabs. However, while much of today’s media outlets have become complicit in torpedoing our freedoms, there are still a few outliers of freedom who attempt to pull back the veil on government corruption and wrongdoing. Which is why the Supreme Court’s recent refusal to hear Risen’s case serves only to diminish the watchdog power of the media,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State.  “In the absence of any real system of checks and balances among the three branches of government—i.e., with Congress, the courts and the Executive Branch working together to advance the government’s agenda at the expense of the citizenry’s constitutional rights—it is more vital than ever that the media serve as a check on the government. That is why freedom of the press is such an integral part of our First Amendment. Our founders understood the importance of the press in maintaining an educated citizenry and a transparent government. But freedom of the press will not make much of a difference if journalists are afraid to shine a spotlight into the darkest corners of our government and society.”

In 2011, federal prosecutors issued James Risen a subpoena ordering him to testify in the trial of former CIA official Jeffrey Sterling, whom the government believed was the source for classified material included in Risen’s 2006 book, State of War: The Secret History of the CIA and the Bush Administration. Citing First Amendment and federal reporter’s privilege rights, Risen refused to divulge his source. His stance was affirmed by the district court, which ruled that he had a “qualified First Amendment reporter’s privilege” that allowed him to avoid testifying.  Nearly 30 media outlets, including ABC, CBS, Fox News, The Associated Press, The Wall Street Journal, New York Times, Time, and a dozen others, filed briefs in the case. On appeal, the Fourth Circuit reversed the lower court’s ruling, finding that there is no First Amendment or federal common law privilege that Risen could assert to prevent him from testifying in Sterling’s criminal case. Because the U.S. Supreme Court refused to hear the case and provided no commentary or explanation for its actions, the Fourth Circuit’s decision stands, putting Risen in danger of being held in contempt of court and sentenced to jail.

In addition to its persecution of journalists, the Obama Administration has also severely cracked down on whistleblowers. As Bloomberg News reports: “Eric Holder, attorney general under President Barack Obama, has prosecuted more government officials for alleged leaks under the World War I-era Espionage Act than all his predecessors combined, including law-and-order Republicans John Mitchell, Edwin Meese and John Ashcroft. The indictments of six individuals under that spy law have drawn criticism from those who say the president’s crackdown chills dissent, curtails a free press and betrays Obama’s initial promise to ‘usher in a new era of open government.’”