In this issue 10 takes a break from the usual format to highlight a session from SPJ’s joint Excellence in Journalism conference, which took place Aug. 24-26 in Anaheim, Calif. On Monday, Aug. 26, attendees gathered for the Super Session “Journalism, the Department of Justice and National Security: When the Watchdogs are Being Watched.” Laurie Babinski, SPJ’s legal counsel at Baker Hostetler moderated the discussion with ABC News senior national correspondent Jim Avila and Lucy Dalglish, dean of the Philip Merrill College of Journalism and former executive director of the Reporters Committee for Freedom of the Press.
What follows is a very condensed and selected version of the 75-minute session, edited for length and clarity. To hear audio of the full session with complete context, see the EIJ13 recap page.
LAURIE BABINSKI: Should we be surprised that the administration has gone after leakers this way?
LUCY DALGLISH: I’m not surprised at all. They’re dealing with a universe that is completely different than what we were dealing with 10 years ago. Ten years ago I don’t think the NSA or the CIA had the ability to scrape everybody’s information the way they do now. We know that technology has evolved so that someone like Bradley Manning or Edward Snowden can grab that stuff and basically, like WikiLeaks did, dump it out there. And I think this has the government scared to death.
JIM AVILA: I really think that their attitude about the press generates from President Obama’s personality … one of control. He wants everything in order, and leaks attack his very personality. His administration controls the message probably better than any administration that we know of. … Not having that control irks him. He also believes, because he said so, that those who have signed an oath not to disclose … he has no problem going after those folks. I do think that he is conflicted … about going after journalists for that.
BABINSKI: With the government seizure of the AP phone records, are we seeing a new trend where the government cuts out the middle man in going after this information? It used to be we’d see subpoenas to the reporter and the reporter would refuse to testify. And now we’re seeing them cutting out the reporter and saying I’m not even going to deal with you.
DALGLISH: They’re doing that a lot. Going after reporters’ phone records is not a new thing. They’ve done that for a very long time. I think the first guidelines on how to do that came out in the 70s. What’s different about the AP case is how many records they went after in a broader period of time that swept in virtually every phone conversation anybody at the AP in three different bureaus had over a two month period. That’s really incredible. Usually they were far more surgical.
BABINSKI: Jim, you’re reporting in Washington. How is the government’s effort to go after leakers, and as a byproduct journalists, affected day to day reporting in the capital?
AVILA: I think what it has done is reminded seasoned journalists that we get our information through personal relationships. It used to be a few years ago … you could call up and say ‘I’m Jim Avila from ABC News, I’ve covered XYZ’ … and because of that reputation of either your organization or you as a journalist you might get them to reveal some information just because of that. That’s more difficult now. They know that their phones are being watched. They know that there are severe penalties, that there are real prosecutions happening. … So nowadays it’s much more difficult to get that kind of cold call information. People are very reluctant to pick up the phone and give you any information. They want to refer you to the public relations office, the PIO. There are fewer people who are inclined to give you information over the phone.
BABINSKI: Journalists have never been prosecuted under the Espionage Act. Do journalists need to be worried about prosecution as leakers even though they don’t have any obligation to keep the documents confidential? Or do they need to be more worried about subpoenas?
AVILA: I still think the biggest threat to journalists is the contempt of court charge. Where we get in the most trouble is when we decide we’re not going to reveal a source because we promised it and we don’t have a protection for that. I don’t see the Obama administration, especially after the big blow up with the AP and with the Fox journalist (James Rosen), prosecuting journalists. I think (Attorney General) Eric Holder had his hand slapped. I think that he was embarrassed … and his liberal, progressive credentials are on the line.
DALGLISH: (The administration won’t prosecute journalists.) They’ve had a bad summer. The Quinnipiac poll came out two weeks ago and what did it say? Fifty-five percent of the American public believes that Edward Snowden is a whistleblower. That took my breath away, because most of the time when you throw these (leakers and whistleblowers) out there the majority (of people) are going to think, ‘Oh, bad guy. Leaker.’
BABINSKI: Do we still need to go after a (federal) shield law?
DALGLISH: When we talk about a shield law we tend to think of that very small number of subpoenas that have to do with national security information. Quite honestly, it’s very rare that a subpoena like that shows up for a journalist outside of Virginia, Maryland, D.C. and New York. Most of the time when you get a phone call at a place like the Reporters Committee, it’s a civil case or it’s a run of the mill federal criminal case. And a shield law would do enormous good in that case.
AVILA: I worked in California, which has a (state) shield law. I felt much better about being able to give that promise to a source that I would not release information about them. I think that’s the most important part about a shield law and how we’re protected. In reality, a contempt charge, what a judge can do without even a trial is pretty frightening. A judge can put you in jail until you talk. And that’s pretty bad.
AUDIENCE QUESTION: What percentage of the public thinks that journalists are vital and doing a good job? I’m more interested in how many people in American really care that journalists are protected by a shield law or if they think we’re just nosy busybodies who don’t deserve any special consideration.
DALGLISH: I think the American public already thinks that we have a shield law because so many states do and they know that in the culture reporters don’t identify sources. In state court it’s pretty much accepted. Like many things the public doesn’t care if we have privileges or not. It’ll be interesting as the definition of who is a journalist broadens if the public gets more attuned to how all of this works.
AVILA: Because we don’t exclude anybody from being called a journalist, and the spectrum is so broad, we are open for criticism. They think Bill O’Reilly is a journalist. They think Sean Hannity is a journalist. They think Rachael Maddow is a journalist. Those are opinion makers. Those are commentators. They think Harvey Levin is a journalist, on TMZ. So it is a huge, broad term. And so when the public is asked ‘Do you respect or trust journalists to present the truth,’ that’s a tough question for most people, because what they’re seeing is opinion. I think they do trust a core of journalists who are the more traditional definition of what a journalist is.