James P. Freeman: Using the espionage act against journalists

“Some of these people [columnists and commentators] have been known to make up, or willfully distort, information to support their political preferences.”

—        Jody Powell, 1984, The Other Side of the Story  

It may be a gnarly revelation.

President Trump is not the first president to wage war with journalists. As Jody Powell,  a  press secretary to  Jimmy Carter in his presidency, understands. Forty years ago, Powell explains over 314 pages, “when the news seemed to me, then …, to be wrong, unsupportable, and unfair.” And, perhaps, fake.

Every president from George Washington to Barack Obama has expressed dismay about the press but, as the Los Angeles Times notes, “none have gone as far as Trump in their public derision.” Even so, few should be surprised by the graffiti artist from New York who came to Washington to deface standard protocols of public life, including media relations. So why is there such acute anxiety over Trump’s repeated calls this year about his arbitrarily defined “fake news” (“the enemy of the people”) against a further arbitrarily- defined “failing media”? Because some fear that he will invoke The Espionage Act as a form of retribution against journalists.

That prospect was recently broached by George Freeman (no relation to me), executive director of the Media Law Resource Center and a former longtime New York Times attorney.

In June 1917, a couple of  months after America’s entry into World War I, Congress passed The Espionage Act, further strengthened and amended by The Sedition Act of 1918. The laws were intended to ensure the nation’s security after President Woodrow Wilson had demanded protection from what he called “the insidious methods of internal hostile activities.” Thousands of dissenters were prosecuted. While the Sedition Act was repealed after WWI, major portions of the Espionage Act remain part of U.S. law today.

At their core, many provisions sought to fundamentally bar many forms of communication (profane, abusive and disloyal speech) concerning the government, the flag, military forces of the United States, or any uniform connected to the American military. Such sweeping legislation, which placed severe and undue impediments on free speech, was challenged early  in U.S. courts.

But no other modern legal challenge to free speech, as it relates to the freedom of the press, was more important than the landmark First Amendment case of New York Times v. Sullivan (1964). The U.S. Supreme Court ruled in favor of The Times. Free and open debate about the conduct of public officials, the court reasoned, was more important than occasional, honest factual errors that might hurt or damage officials’ reputations. Associate Justice Hugo Black wrote:  “An unconditional right to say what one pleases about public affairs is what I consider to be minimum guarantee of the First Amendment.” The decision largely eliminated sedition as a crime. Fifty years later, Roy S. Gutterman, a journalism and communications law professor at Syracuse University, reasonably concluded, “This decision changed the way reporters and journalists could operate and transformed commentary, newsgathering, criticism, even parody and satire.”

Still, The Espionage Act is potent.

Freeman is concerned about the present, given the extreme unpredictability of a president who equally craves and crucifies the press -- especially a president whose administration seems oddly susceptible to frequent leaks of its own, and a president with a remarkable proclivity for calling any news he is discomfited by fake news.

While Freeman concedes that act has never been used to prosecute a journalist, let alone successfully, “that crucial distinction is somewhat in doubt.” If President Trump “actually tries to prosecute a journalist or publication that,” Freeman fears, “merely accepts and publishes a leak of information arguably covered by the Espionage Act — as opposed to just the leaker him/herself — that’s when the Trump offensive against the press will go to a whole new and terribly dangerous level.” He adds that, despite leaks of sensitive government information that the press has published throughout its history, “no president nor prosecutor has {fully} gone after the press.”

However, provocative Freeman’s thesis, though, he is wrong in believing that President Obama “defended ordinary newsgathering, including the reception of leaks.” Indeed, President Obama opened the door for waging a larger war on the press.

In eight years, the Obama administration prosecuted nine cases involving leakers and whistle blowers, compared with a total of three cases by all previous administrations. An analysis appearing in The New York Times last December by James Risen shows that Obama repeatedly used the Espionage Act “not to prosecute spies but to go after government officials who talked to journalists.” Risen, an investigative reporter, writes that, under Obama, the U.S. Justice Department and FBI “spied on reporters by monitoring their phone records, labeled one journalist an unindicted co-conspirator in a criminal case for simply doing reporting, and issued subpoenas to other reporters to try to force them to reveal their sources and testify in criminal cases.”

In 2010, Obama’s Justice Department obtained a search warrant for Fox News reporter James Rosen’s private email during an investigation. In an affidavit supporting the search warrant, an FBI agent accused the reporter of conspiring to violate the Espionage Act.

Obama’s team may have adopted a “zealous, prosecutorial approach” due to large-scale leaks by Chelsea Manning and later by Edward Snowden, says Risen. And he cites the Valerie Plame case during President George W. Bush’s administration, where Plame was outed as a C.I.A. employee and former operative, which in turn “led to a series of high-profile Washington journalists being subpoenaed to testify before a grand jury and name the officials who had told them about her identity.”

Today, Risen asserts, many press freedom groups believe that Obama’s “record of going after both journalists and their sources has set a dangerous precedent that Mr. Trump can easily exploit.” So, what has Trump been up to? Following Obama’s lead.

In Part III of a compelling series by Freedom of the Press Foundation, on the 100th anniversary of The Espionage Act, senior reporter Peter Sterne last month wrote, “Espionage Act prosecutions of journalists’ sources have continued under the administration of President Donald Trump and only look to get worse.” While Julian Assange, founder of WikiLeaks, was the recipient and publisher of the classified documents leaked by Manning, Obama’s Justice Department, we are reminded, declined to publicly issue charges against WikiLeaks. But the case is still technically open. Nonetheless, the Justice Department under Attorney General Jeff Sessions has indicated that it intends to seek Assange’s arrest.

This past spring, The New York Times reported a purported conversation earlier this year between President Trump and then-FBI Director James Comey, alone together in the Oval Office. A reporter wrote: “Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.”

Regarding "fake news'' (2016’s “Words of the Year”), a phrase modernized, not coined, by Facebook, the social-media company has made efforts to supposedly combat fake news and help support journalists. Facebook Journalism Project has led to modifications in its publishing tools, among other changes. Could Facebook, as a distributor of news, one day be implicated or prosecuted in the dissemination of sensitive and classified information, let alone fake news? President Trump might think so.

Meanwhile, history repeats itself at the White House.

Jody Powell believed “that our relations with the press began to fray in the late summer of 1977,” a few months into Carter’s first term, a president whose party controlled both houses of Congress. With abject chaos surrounding his relationship with journalists, culminating (so far) with the resignation of his first press secretary, Sean Spicer, the same sentiments may be echoed in the summer of 2017, a few months into Trump’s first term, a president whose party also controls both houses of Congress.

James P. Freeman is a New England-based writer and former columnist with The Cape Cod Times. His work has also appeared in The Providence Journal, newenglanddiary.com and nationalreview.com. This piece first appeared in the New Boston Post.