Freedom of the press protects the right of the press to publish things.
It does not[1] protect any agreements made to secure that publishing. If you guarantee your source anonymity or a million dollars and you later can't deliver because someone emptied the bank account or eavesdropped or a court compelled you to testify, that has nothing to do with your right to publish. It may affect your ability to publish but so do locked doors and I don't see anyone saying freedom of the press should trump trespassing rules.
If bystander Amy is witness to Bob's crime and subpoenaed and under oath she can either tell the court the truth of what happened, perjure herself or not answer and be held in contempt. Freedom of the press, attorney-client and doctor-patient privileges should provide zero protection here.
[1] Generally in the US. Many states have shield laws and protected in various other countries.
"Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law," Obama said during a May 23 address after those scandals first surfaced.
I find it hard to reconcile that with the Obama administration's attitude to Snowden, Wikileaks, Assange, etc.
I don't know if he's a sociopath or a pathological liar. But he seems to be doing the exact opposite of what he's saying in public. He seems pretty shameless about it, too. I mean he likes to talk a big talk about civil liberties, like he's some kind of Martin Luther King on TV - and then the next day he's acting like Nixon or McCarthy or worse.
And even if he appears to be doing something right, what he's doing actually has an evil intent, like I hear those new DoJ policies that are meant to "protect" the press, actually have a pretty narrow definition of the press, so that not everyone falls under that category and only certain journalists. So he's basically limiting the 1st amendment through these policies, at the executive level.
Jesus christ. I argued for a Bill of Rights while participating in Youth Parliament here in Australia, and used USAs typically strong defence of freedoms as my evidence.
And now all of that has been systematically ignored and weakened over the past few years (of course, it could have always been like this and I just hadn't noticed). It's a dammed shame, and I am no longer excited about possibly moving to Silicon Valley: I don't think I'll move at all anymore.
There never was this sort of freedom for journalists. The fact that you think so is just a testament to how easily journalists can spread their messages.
They always wanted there to be such a law, but there isn't and never was.
I am not saying it might not be a good thing for this to be the law, I'm just saying it never existed.
Articles about court cases should properly cite the case and link to the decision. For court case that went on for years and involved reams of documents entered into evidence, something's probably gonna get lost in the reduction to a couple paragraph summary. Isn't it weird that nobody reads court documents before railing against the outcome? It's not that hard to read the opinion and dissent, identify the judges' perspectives, and follow their arguments. Even if you have no background in constitutional law or relevant statutes, you can pick it up as you go along.
Anyways, since I can't find the decision I can't really figure out whether I should complain and do nothing about the court or the law.
This kind of thing proves how much of a genius Osama Bin Laden was when he planned the 9/11 attacks. He knew we would throw away our values and move toward totalitarianism.
With the massive surveillance apparatus in place, US journalists scared to cover many of these stories that RT covers, etc., the US is one attack away from instituting a much more overt police state.
Peter King is one attack away from the White House.
In the midst of all this it's amazing how little dissent there is. I used to think it was mysterious how things like Nazi Germany could have happened, but now I think it's clear that it just takes a series of small steps in the wrong direction, and none of the actors have to be overtly evil.
This administration is walking all over civil liberties and constitutionally protected freedoms. It is turning way too many citizens into enemies of the state. And where not charging them as such, it settles for treating them as such.
The branches are not keeping each other in check, either. Instead, they continue to allow themselves to be complicit in violating the consent of the governed, fighting over useless, divisive issues (let's break the country's arm to control everyone's sexuality), and tossing away the constitutional protections we've grown far too accustomed to taking for granted.
Remind me where in the Constitution it says that "Congress shall pass no law abridging the freedom of journalists to keep their sources secret?"
Indeed, keeping sources secret cuts against the common law evidentiary practice that was typical at the time of the founding. Common law courts have sweeping powers to force people to hand over evidence in their possession using subpoenas, with just a few limitations (5th amendment self-incrimination, etc).
Floyd Abrams, noted 1st amendment lawyer, had this to say about the case: "[Persuading the Court to grant First Amendment protection to journalists regarding their sources] was obviously going to be a hard sell. Notwithstanding the strong policy arguments in favor of establishing this privilege and the serious harm that would be caused by its absence, no such protection had ever been held to exist. Not only was the concept that the judicial system was entitled to 'every man's evidence' itself deeply rooted in the Constitution, but merely determining the scope of the privilege (when would it apply?) and identifying who would receive it (only regularly employed journalists? freelancers? anyone?) were difficult matters at best."
There isn't, and never was, any protection for journalists.
Journalists wanted to believe there was, and frequently acted as if there was, but there isn't. This is just affirming that well known law.
Now you might say it would be a good thing if such a law exists, and journalists certainly think so - and would have an easy time spreading their message. But as is no such law exists.
No. What this holds is that (as has long been the case) there is no special journalists' privilege they can assert to avoid testifying.
They still have a 5th-amendment right not to answer questions where the answers might incriminate the journalist themselves (rather than their source). However, usually this is not at issue, because the reporter republishing the material isn't a crime, so their testimony wouldn't implicate them in a crime.
In cases where the witness the government wants to compel could plausibly be themselves accused of a crime, the government can avoid being stymied by 5th-amendment assertions by just granting the witness immunity from prosecution. Then the possibility to assert a 5th-amendment right disappears, because if the person cannot be legally incriminated in the case (due to immunity from prosecution) they no longer have a basis for asserting a right against self-incrimination.
In Australia at least, yes. Many have been found in contempt of court and jailed because of it. Does the right to not self incriminating extend to incriminating your source?
"Journalist" has always been a bit of an artificial distinction. Members of the press don't get special rights for being so. The most they may have gotten in the past was special access.
This clearly shows two things. We've all been journalists all along and we never really quite had the rights we thought we had.
Agreed. Whether journalists are legally allowed to protect their sources or not, this right (or lack thereof) needs to apply to all citizens. Otherwise, we would have created a new class of people who have different constitutional rights than others.
How can the legal system selectively allow some people the right to protect sources and not others? Who gets to decide who's a journalist? Do we draw the line at establishment reporters? Or do we allow full-time bloggers? What about part-time bloggers? What about if someone's never blogged before, but suddenly has something to say?
"Journalists" are not given special rights by the 1st amendment, which states that all of us are entitled to freedom of the press (not freedom for the press).
In the internet age, we are all journalists and therefore we should all have the right not to reveal our sources for what we publish.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
The traditional way is mixmaster remailing - mail a letter containing a letter, with instructions to remail the innermost letter, in blind cover. It's a physical instantiation of the way Tor works, and the way early email mixmasters worked. You can use additional 'hops' if you are worried about it.
What is unprecedented and disturbing is the classification of releasing information to the (American) public, whether that be through the New York Times or Pastebin, as aiding the enemy.
Unauthorized leaks have never been legal but in the past even the government has understood that these people are a far cry from being enemy agents.
So the fourth estate now can't keep their sources secret ...
Funny because the executive branch seems to like their secrets so much, they will work to set up secret courts with secret laws just so the secrets don't get revealed to the public. And they will go to great lengths to pursue those that reveal those secrets. "Trust us, we followed due process and our actions have been authorized by a few secret courts."
But journalists? Hey they are just "citizens." After all who cares that this will severely hamper anonymous sources to the media?
[+] [-] Steko|12 years ago|reply
It does not[1] protect any agreements made to secure that publishing. If you guarantee your source anonymity or a million dollars and you later can't deliver because someone emptied the bank account or eavesdropped or a court compelled you to testify, that has nothing to do with your right to publish. It may affect your ability to publish but so do locked doors and I don't see anyone saying freedom of the press should trump trespassing rules.
If bystander Amy is witness to Bob's crime and subpoenaed and under oath she can either tell the court the truth of what happened, perjure herself or not answer and be held in contempt. Freedom of the press, attorney-client and doctor-patient privileges should provide zero protection here.
[1] Generally in the US. Many states have shield laws and protected in various other countries.
http://en.wikipedia.org/wiki/Protection_of_sources
http://en.wikipedia.org/wiki/Shield_laws_in_the_United_State...
[+] [-] jimktrains2|12 years ago|reply
Floyd Abrams has an entire chapter on it in "Friend of the Court."
[+] [-] swombat|12 years ago|reply
I find it hard to reconcile that with the Obama administration's attitude to Snowden, Wikileaks, Assange, etc.
[+] [-] bobwaycott|12 years ago|reply
There is something systemically wrong happening behind closed, classified doors.
[+] [-] mtgx|12 years ago|reply
And even if he appears to be doing something right, what he's doing actually has an evil intent, like I hear those new DoJ policies that are meant to "protect" the press, actually have a pretty narrow definition of the press, so that not everyone falls under that category and only certain journalists. So he's basically limiting the 1st amendment through these policies, at the executive level.
[+] [-] girvo|12 years ago|reply
And now all of that has been systematically ignored and weakened over the past few years (of course, it could have always been like this and I just hadn't noticed). It's a dammed shame, and I am no longer excited about possibly moving to Silicon Valley: I don't think I'll move at all anymore.
[+] [-] ars|12 years ago|reply
They always wanted there to be such a law, but there isn't and never was.
I am not saying it might not be a good thing for this to be the law, I'm just saying it never existed.
[+] [-] seliopou|12 years ago|reply
Anyways, since I can't find the decision I can't really figure out whether I should complain and do nothing about the court or the law.
[+] [-] socillion|12 years ago|reply
It's 118 pages, have fun.
I found it at http://www.emptywheel.net/2013/07/19/fourth-circuit-guts-nat...
[+] [-] grandalf|12 years ago|reply
With the massive surveillance apparatus in place, US journalists scared to cover many of these stories that RT covers, etc., the US is one attack away from instituting a much more overt police state.
Peter King is one attack away from the White House.
In the midst of all this it's amazing how little dissent there is. I used to think it was mysterious how things like Nazi Germany could have happened, but now I think it's clear that it just takes a series of small steps in the wrong direction, and none of the actors have to be overtly evil.
[+] [-] bobwaycott|12 years ago|reply
This administration is walking all over civil liberties and constitutionally protected freedoms. It is turning way too many citizens into enemies of the state. And where not charging them as such, it settles for treating them as such.
The branches are not keeping each other in check, either. Instead, they continue to allow themselves to be complicit in violating the consent of the governed, fighting over useless, divisive issues (let's break the country's arm to control everyone's sexuality), and tossing away the constitutional protections we've grown far too accustomed to taking for granted.
This is unacceptable.
[+] [-] rayiner|12 years ago|reply
Indeed, keeping sources secret cuts against the common law evidentiary practice that was typical at the time of the founding. Common law courts have sweeping powers to force people to hand over evidence in their possession using subpoenas, with just a few limitations (5th amendment self-incrimination, etc).
The Wikipedia page for an older journalist privilege case gives a good description: http://en.wikipedia.org/wiki/Branzburg_v._Hayes
Floyd Abrams, noted 1st amendment lawyer, had this to say about the case: "[Persuading the Court to grant First Amendment protection to journalists regarding their sources] was obviously going to be a hard sell. Notwithstanding the strong policy arguments in favor of establishing this privilege and the serious harm that would be caused by its absence, no such protection had ever been held to exist. Not only was the concept that the judicial system was entitled to 'every man's evidence' itself deeply rooted in the Constitution, but merely determining the scope of the privilege (when would it apply?) and identifying who would receive it (only regularly employed journalists? freelancers? anyone?) were difficult matters at best."
[+] [-] ars|12 years ago|reply
Journalists wanted to believe there was, and frequently acted as if there was, but there isn't. This is just affirming that well known law.
Now you might say it would be a good thing if such a law exists, and journalists certainly think so - and would have an easy time spreading their message. But as is no such law exists.
[+] [-] ivv|12 years ago|reply
[+] [-] transfire|12 years ago|reply
[+] [-] _delirium|12 years ago|reply
They still have a 5th-amendment right not to answer questions where the answers might incriminate the journalist themselves (rather than their source). However, usually this is not at issue, because the reporter republishing the material isn't a crime, so their testimony wouldn't implicate them in a crime.
In cases where the witness the government wants to compel could plausibly be themselves accused of a crime, the government can avoid being stymied by 5th-amendment assertions by just granting the witness immunity from prosecution. Then the possibility to assert a 5th-amendment right disappears, because if the person cannot be legally incriminated in the case (due to immunity from prosecution) they no longer have a basis for asserting a right against self-incrimination.
[+] [-] girvo|12 years ago|reply
[+] [-] znowi|12 years ago|reply
I hope they hold the same opinion of NSA agents.
[+] [-] noonespecial|12 years ago|reply
This clearly shows two things. We've all been journalists all along and we never really quite had the rights we thought we had.
[+] [-] quahada|12 years ago|reply
How can the legal system selectively allow some people the right to protect sources and not others? Who gets to decide who's a journalist? Do we draw the line at establishment reporters? Or do we allow full-time bloggers? What about part-time bloggers? What about if someone's never blogged before, but suddenly has something to say?
[+] [-] argumentum|12 years ago|reply
In the internet age, we are all journalists and therefore we should all have the right not to reveal our sources for what we publish.
[+] [-] rustynails77|12 years ago|reply
This will actively encourage corruption.
[+] [-] aci3ghsf|12 years ago|reply
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
The implied distinction between freedom "of" the press and freedom "for" the press is sophistry. See http://en.wikipedia.org/wiki/Freedom_of_the_press_in_the_Uni... for several important examples demonstrating this.
[+] [-] unknown|12 years ago|reply
[deleted]
[+] [-] gngeal|12 years ago|reply
[+] [-] jaggederest|12 years ago|reply
http://en.wikipedia.org/wiki/Mixmaster_anonymous_remailer
That said, the problem is that most of the time the data you're sending outs you in some way.
[+] [-] steevdave|12 years ago|reply
[+] [-] eigenvector|12 years ago|reply
Unauthorized leaks have never been legal but in the past even the government has understood that these people are a far cry from being enemy agents.
[+] [-] quasque|12 years ago|reply
Whether or not this causes a sufficiently chilling effect on whistleblowing within the US, or reporting on it, remains to be seen.
[+] [-] Andrew_Quentin|12 years ago|reply
[+] [-] mseebach|12 years ago|reply
[+] [-] EGreg|12 years ago|reply
Funny because the executive branch seems to like their secrets so much, they will work to set up secret courts with secret laws just so the secrets don't get revealed to the public. And they will go to great lengths to pursue those that reveal those secrets. "Trust us, we followed due process and our actions have been authorized by a few secret courts."
But journalists? Hey they are just "citizens." After all who cares that this will severely hamper anonymous sources to the media?
[+] [-] venomsnake|12 years ago|reply
It is not about just journalist we need broad third party protections for information possession.
After all the whole idea is the government to not have the things too easy.