It’s been half a year since the Associated Press revealed a subpoena sweeping up phone metadata records for more than 20 of its lines, in offices where more than 100 reporters work, covering tens of thousands of newsgathering calls.
Members of the press (and me) seized on the story to decry the chilling effect the Obama administration’s aggressive “leak” investigations are having on the media. To date, hard evidence of that chill has been somewhat sparse. But a scathing by the Committee for Protection of Journalists makes clear that the chill is real and increasingly frigid.
The report, written by former Washington Post Executive Editor Leonard Downie, pulls no punches in its criticism of the Obama administration’s failure to abide by campaign promises to be the most transparent White House in recent memory. “The administration’s war on leaks and other efforts to control information are the most aggressive I’ve seen since the Nixon administration,” Downie, who covered Watergate, writes. “The 30 experienced Washington journalists at a variety of news organizations whom I interviewed for this report could not remember any precedent.”
Downie also details how the leak prosecutions are part of a larger message discipline effort at the White House. That effort includes the administration’s extensive use of social media and White House-produced news content as part of “a strategy, honed during Obama’s presidential campaign, to use the Internet to dispense to the public large amounts of favorable information and images generated by [the] administration, while limiting its exposure to probing by the press.”
He also helpfully links the administration’s focus on message discipline with the “” program reported by McClatchy in June. I wrote about how that initiative—which will require all cleared employees to receive training in how to recognize (unreliable) behavioral indicators of security threats—.
But the most disturbing passages are the first-hand accounts by national security reporters of sources drying up in direct response to the administration’s crackdown, especially as a result of the leak hunt piled on top of the NSA surveillance revelations. “People think they’re looking at reporters’ records,” The Washington Post national security reporter Dana Priest tells Downie. “I’m writing fewer things in e-mail. I’m even afraid to tell officials what I want to talk about because it’s all going into one giant computer.”
“Most people are deterred by those leaks prosecutions,” says Scott Shane at The New York Times. “They’re scared to death. There’s a gray zone between classified and unclassified information, and most sources were in that gray zone. Sources are now afraid to enter that gray zone.”
David Sanger, the Times reporter who broke news of the Stuxnet virus, the highly secretive cyber-weapon engineered to sabotage Iranian nuclear operations, was reportedly personally targeted for a freeze out. “A memo went out from the chief of staff a year ago to White House employees and the intelligence agencies that told people to freeze and retain any e-mail, and presumably phone logs, of communications with me,” Sanger told Downie. Longtime sources told Sanger, “David, I love you, but don’t e-mail me. Let’s don’t chat until this blows over.”
The report contains many other specific examples of this growing freeze on anonymously-sourced national security reporting. And that’s deeply concerning. The freedom of the press exists not to protect the Priests, Shanes, and Sangers of the world. It exists to protect us, the American people, who pay for and have a right to know what the government is doing in our name.
Ideally, the government would strive for balanced transparency. Truly sensitive national security information (like the Syrian war plans that were mysteriously leaked during the lead-up to a possible strike—to the benefit of the administration) would be classified, but there would be significant disincentive against over-classification.
Unfortunately, as James Madison wrote in the Federalist Papers, if “angels were to govern men, neither external nor internal controls on government would be necessary,” and a government of us, by nature, will always fall short of angelic. The most important external control is the press and the arctic chill detailed in this report should be of pressing concern to us all.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.