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Obama Admin's Fox News Spying Scandal Is a Dangerous Step Toward Criminalizing Journalism

Advocates see potential "sea change" now that government crackdown on leaks includes framing journalism as a crime.

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Addressing reporters Tuesday, White House Press Secretary Jay Carney said, “If you are asking me whether the president believes that journalists should be prosecuted for doing their jobs, the answer is no.” The comment came in light of revelations that in 2010 an FBI agent had described Fox News correspondent James Rosen as a possible “co-conspirator” in a crime for the journalistic act of obtaining leaked information from a State Department source.

Even if we are to take Carney at his word, his remark comes as little assurance. The president may believe that journalists should never be prosecuted for doing their job. What’s at stake, then, is what this administration considers the job of a journalist. In the context of the ongoing war on leaks and an administration invested in the tight control of information, the presidential view on protected journalistic activity seems a far cry from a robust Fourth Estate.

Whether there was ever any intention of prosecuting Rosen, or whether the “co-conspirator” claim was simply a means to get a search warrant for the reporter’s emails, is unknown. Both scenarios are troubling. In either scenario too, we have a government agency framing acts of journalism as potential crimes worthy of investigation and intensive surveillance. It’s for this reason that civil liberties advocates and legal experts — often with no love for Fox News — are viewing the Rosen case as more serious even than the Justice Department’s AP spying scandal.

“The administration’s draconian crackdown on disclosures of information to the media was already unprecedented. Now, it has crossed over a sacred line,” Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program, told Salon. Goitein, who has worked extensively on the issue of government secrecy and document classification, sees the explicit targeting of a journalist for receiving leaked information as a dangerous new turn in the government’s war on whistleblowers, with disturbing lessons about the government’s respect for First Amendment protections. She told Salon over the phone why, in her view, the Rosen case is a new brand of troubling:

The fundamental premise of national security reporting is that reporters have a First Amendment right to report information – to obtain information and report it, and they are just in a fundamentally different position from government officials who sign on to keep these secrets… There is and there should be a big difference between someone who has signed a non-disclosure agreement being penalized for leaking information and someone being penalized for receiving information or further publishing information when that person arguably isn’t under any legal obligation and in fact has a first Amendment right to receive and spread that information.

Those first amendment protections apply also to regular members of the public and private individuals. Now the justice department has special rules when it comes to subpoena’ing journalists for their sources because they understand that there’s special sensitivity in terms of the media’s right to report, but in fact it would be just as wrong for the administration to target Julian Assange or any individual who discloses information that that individual receives when that person has made no pledge and is under no obligation legally to keep that information within the government.

The targeting of journalists under the Espionage Act, whether it’s through the warrant application or an actual prosecution – I mean, that really spells the death knell for free reporting in this country, if that were to be permitted to continue. And so I think the crackdown on whistleblowers has been shameful in this administration but we’re in new territory now, and there’s an urgent, urgent need for action to stop this train before it gets out of the station.

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