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 While the Sedition Act was repealed after WWI, major portions of the Espionage Act remain part of U.S. law today.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.
James P. Freeman: Will Boston follow New York's perilous progressivism?
“One entered the city like a god; one scuttles in now like a rat.”
— Vincent J. Scully, Yale architectural historian
So was the thinking about the demolition in 1963 of a Beaux Arts masterpiece in New York City, the old Pennsylvania Station, an act of progressive vandalism, from which rose (or sank) the present site of the Madison Square Garden complex, a dingy maze of commerce and commotion. In the 1960s, progressivism – once a purely political movement – began to seep into civics and cultural mores, even private-sector architecture.
The city ultimately recovered from this destructive movement in the 1990s and 2000s. But with vicious irony, Bill de Blasio was elected in 2013 as New York City’s mayor (the first Democrat in 20 years) within days of the 50th anniversay of the old Penn Station’s demise.
De Blasio is today’s most outspoken urban progressive, with ambitions beyond his abilities. His friend, and fellow co-chair of Cities of Opportunity Task Force (COTF), Boston Mayor Marty Walsh, should resist this progressive lurch, and distance himself from de Blasio, as he eyes re-election next year.
De Blasio’s Progressive Agenda is intellectual graffiti, slowly defacing the very progress that New York City has enjoyed over the last 20 years; it is also agitating residents, given recent polling.
Boston too has experienced a remarkable 20-year rejuvenation, from which it should not retreat in an effort to emulate New York.
Walsh may not seem like a progressive pillar (more of a wanna-be) but that didn’t stop then-Boston Globe columnist Joan Vennochi, during 2013’s mayoral campaign, from describing his stance on issues as, “dear to progressive hearts.” As The Globe further noted a year later, de Blasio and Walsh “both campaigned on a message of economic populism, vowing to tackle income inequality and dramatically expand early education” – among the flash points of the progressive agenda.
With regard to “rising inequality” and “declining opportunity,” de Blasio said, upon the launch of the COTF that, “the task force is going to organize and focus the progressive ideas coming out of cities.” The defining mission of the COTF is to “make equity a central governing principle” and “advance a national common equity agenda.”
What progressive ideas in the last 50 years have benefitted the likes of, say, Detroit, Chicago and Baltimore, bastions of murder and mayhem? And since when is equity a “governing principle”?
Under Mayors Rudolph Guiliani and Michael Bloomberg, New York City repelled those progressive ideas, making the city safer and more prosperous. Boston was certainly not a progressive haven during these years. Indeed, the late Thomas Menino – Boston’s longest serving mayor – was more of a powerbroker and pragmatist, eschewing lofty ideas. Rather, he fully embraced being the “Urban Mechanic.”
Last year at the second meeting of the COTF, held in Boston, Walsh said, “inequality is a national crisis. It’s holding down wages, it’s holding back our economy, it’s undermining the American Dream.”
Not in Boston. Apparently Walsh does not see the paradox of progressive thinking as it applies to his city. Boston has one of the highest inequality levels in the country, yet The Hub is flourishing. It will be fun watching Walsh explain why Boston should adopt de Blasio’s progressive politics during next year’s mayoral race.
There are other areas where the two mayors are ideologically simpatico: climate change (both mayors attended a Vatican conference on slavery and climate change last year; Walsh says – seriously! – there is “social equity” when “talking about the environment”); free universal pre-K education (in a 2013 position paper Walsh indicated that there is“no greater equity issue” than ensuring all students “start kindergarten with foundational skills”); and affordable housing. Progressives demand equality of outcomes in all aspects of life — even if it is not earned or deserved or paid for.
Writing for The American Prospect, Harold Meyerson noted that the mayoral class of de Blasio and Walsh, among others, in 2013 is “one of the most progressive cohorts of elected officials in recent American history.” Collectively, they may be “charting a new course for American liberalism.”
Today 27 of the nation’s 30 largest cities have Democratic mayors. But, mercifully, 23 states are controlled by both Republican legislatures and governors. It remains to be seen if the new progressives will leave a positive legacy. Preferably, it will be a short-lived one.
Once again, there is talk of “transforming” Penn Station and returning it to its former state of grandeur. That is the delicious irony of New York’s progressivism: everything old is new again. Boston need not repeat the refrain or rattletrap.
James P. Freeman is a New England-based writer and former columnist with The Cape Cod Times. This piece originated in The New Boston Post.
James P. Freeman: Mass. in '15: A state of hope and (fiscal) peril
It is right there
Betwixt and between
The orchard bare
And the orchard green
— Robert Frost from “Peril of Hope”
With an eerie prescience, the Jan. 9, 2015, front page of The Boston Globe captured perfectly the mixture of fear and anticipation associated with the hope a new year brings. Two headlines above the fold – “Boston picked to bid for Olympics” and “Baker promises firm fixes, sensitive touch” – would set the tone for 2015 in Greater Boston.
Boston 2024 Partnership, the consortium of business and political interests (so-called “thought leaders”) to bring the 2024 summer Olympic games to The Hub, underestimated Bostonians’ capacity for common sense and overestimated Bostonians’ tolerance for large municipal projects. (Didn’t anyone remind planners of the Big Dig experience?) Residents rightly feared costs would be socialized and any profits would be privatized by special interests. The bid was rescinded in July.
Charlie Baker was sworn in as Massachusetts’ 72nd governor within hours of the Olympic announcement. No politician campaigned on the Olympics but it consumed precious time and energy from more mundane and serious matters, such as the opioid emergency, which rages on unabated (1,256 people – likely more this year – fatally overdosed in Massachusetts in 2014). Alarmingly, more people die in Massachusetts from overdoses than from car crashes.
Boston broke the record for snowiest winter on record, with 108.6 inches. But the MBTA was broken long before 2015 from decades of incompetent government oversight. With melting irony, man could not make the trains run during the blizzards but a train actually ran without a man this December in Braintree, due to “operator error.” Baker must restore the entire system to ensure a second term.
The New England Patriots earned their fourth Super Bowl championship in February, amidst the faux-scandal of Deflategate (which is now being taught as a class at University of New Hampshire). A federal judge determined that the NFL went too far in suspending quarterback Tom Brady. In May, some suggested that Salem State University went too far in paying him $170,000 for a one hour “lecture.” But don’t tell that to the local media, which cover the team by way of sports jingoism, not journalism.
It took a jury in April nearly 26 minutes just to read the “guilty” verdict on all 30 counts against unrepentant terrorist Dzhokhar Tsarnaev, in the Boston Marathon bombing trial.
Irish rockers U2, who lived through the terror of “The Troubles,” charmed the town with four sold-out concerts this summer, as “#BostonStrong” was featured prominently on a massive vidi-wall during their encores.
Pedro Martinez was inducted into the Baseball Hall of Fame and David Ortiz announced this post season he would retire in 2016. Their recognition and retirement mark the perilous end of an era of Boston baseball dominance. Perhaps no other players were better catalysts of hope for a despondent Red Sox Nation before 2004.
Two films about Boston’s ugly underbelly proved to be, in many respects, largely for Boston; another cathartic exercise in order to exorcise criminality. “Spotlight” chronicled the unspeakable and unimaginable clergy sex abuse cover up, and “Black Mass” showcased Whitey Bulger. Each affirmed that evil can reside both in men of the cloth and the cleaver.
After nearly a century, Cambridge-based Converse unveiled the long-awaited Chuck Taylor II sneakers.
After 20 years since the first charter school was opened in Massachusetts, with some municipalities having reached their quotas, many want a reset, a Charter 2.0.
Atty. Gen. Maura Healey, prodigal progressive, concluded that more regulation (of course) would be best for Boston-based fantasy sports league website DraftKings (and FanDuel). But former Gov. Deval Patrick, promiscuous progressive, discovered free enterprise by joining the investment firm Bain Capital.
In November, the financial news Web site 247wallst.com ranked Massachusetts as the best place to live among the 50 states. General Electric thinks so, as it imagines what a world headquarters might look like in Boston as it contemplates relocation from Connecticut for lower taxes and closer proximity to the area’s innovation ecosystem.
This autumn, the Oxford Dictionaries determined that its word of the year was, in fact, not a word, but a pictograph. The “Face with Tears of Joy” emoji according to Oxford lexicographers, “best reflected the ethos, mood and preoccupation of 2015.”
In retrospect, then, Frost got it partially right. Time — and 2015 — might best be defined as an alloy of peril and hope.
James P. Freeman is a New England-based writer and a former Cape Cod Times columnist. This comes via the courtesy of The New Boston Post.
For some of his previous columns, read:
- See more at: http://newbostonpost.com/2015/12/30/the-year-2015-and-the-peril-of-hope/#sthash.VrgyiQQu.dpuf