Barrett Brown, Freedom of the Press, and the Failed Shield Law

By Ali Salaam, MintPress News

31 July 16

 

t’s been 7 months since journalist Barrett Brown was recently sentenced to 63 months, or 5 years in prison, while the corporate state he was trying to expose walks free, continuing their crimes against humanity.

Perhaps George Orwell said it best: “Journalism is printing what someone else does not want printed. Everything else is public relations.”

The American government has no interest in protecting press freedom. They just want to protect the press that serves the agenda of war and limi the political conversation to only the two parties. Forget objectivity on the Middle East: Rupert Murdoch is in the oil business in the Israeli-occupied Golan Heights with Lord Jacob Rothschild, whose family created the Federal Reserve as well as Israel’s Supreme Court Building, and Dick Cheney; Wolf Blitzer is a former AIPAC lobbyist; and Anderson Cooper was a former intern at the CIA.

The federal government pretends to support press freedom. In 2013, the Senate Judiciary committee moved The Free Flow of Information Act of 2013 out of committee and closer to a floor debate. While many mainstream journalists supported the measure, many, including national security reporters, were leery that the legislation infringes on the First Amendment.

These so-called shield laws, like Senator Feinstein’s FFIA, should cause journalists to think about the depth or scope of covering a high-profile story in which the government or their corporate overlords are complicit. If the threat of jail time were part of the equation, would the writer stand silent or reveal it through publication in the public domain?

For the corporate media, such a law would protect them. But this article will further discuss how they wouldn’t have considered any other outlets besides the corporate media to be journalists, and therefore not subject to protections, whether it be confidentiality of sources or otherwise.

For example, in the case of Chelsea Manning, the Uniformed Code of Military Justice requires disclosure of crimes against humanity committed by superiors including the Commander-in-Chief. In a flawed system where human life is not valued, her superiors did not care that war crimes were being committed. Edward Snowden’s contract with private defense contractor Booz Allen Hamilton has different implications, but they were contracting with public agencies, requiring him to blow the whistle on violations of our basic rights. He too tried traditional avenues. Regardless of what any law says, morality dictates that they both should get this information out to the public in any way they can. Their moral fiber wouldn’t allow them to sell this priceless information to one government or another, but instead they released it to the public for the public good.

Today’s brave whistleblowers like Snowden and Manning, who are supplying important information in a heroic or courageous manner, should not face prosecution by the government when their actions are weighed against the public’s right to know. Unfortunately, that is not the case and the government’s war on journalists forces the First Amendment through a paper shredder.

The New York Times published the “Pentagon Papers” in the 1970’s, using information gathered by whistleblower Daniel Ellsberg. But after four decades of government protectionism through the enactment of national security laws, whistleblowers increasingly have to resort to breaking the law to identify crimes or wrongdoing. They themselves are journalists, in a sense.

Fast forward to 2013, where the national security laws sent Central Intelligence Agency (CIA) whistleblower, John Kiriakou, to federal prison for speaking the truth on the torture program, which should have landed the Bush administration in prison. Obama is holding them harmless and continuing these programs along with endless illegal wars.

With the impact of whistleblower websites like WikiLeaks, the government has been seeking ways to silence WikiLeaks and other forms of alternative Internet journalism to protect its secrets. While WikiLeaks founder Julian Assange remains “holed-up” in the Ecuadorian Embassy in Britain to avoid possible extradition to the U.S., America seeks to arrest the Australian national for publishing classified American documents purportedly describing criminal acts by governments, as well as other embarrassing information. The U.S. government also indicated its willingness to extradite Assange under Eric Holder’s Department of (in)Justice. Add to that the treatment of the late Reddit founder Aaron Swartz, Jeremy Hammond, and fellow WikiLeaks publisher, Barrett Brown.

Brown’s alleged crime came in the form of posting a link that contained credit card information that had already been posted on the Internet, and also, for allegedly threatening an FBI agent on YouTube and Twitter. The federal judge slapped a media gag order against him for a period of time. Brown will also be required to pay over $800,000 in fines and restitution to Stratfor, the private intellgence agency whose customer credit cards were part of the leaked information.

And finally, rounding out our list of recent journalist victims, the deceased journalist Michael Hastings, purportedly came under FBI surveillance for his support of open information and going toe-to-toe with the military brass.

Know too much? End up on an FBI watch list

This suppression and surveillance of journalists has been going on behind the scenes for longer than these recent events suggest, thanks to the Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2001, aka the USA PATRIOT Act. If things were not bad enough for journalists, the failed 2013 “shield law” was sponsored by establishment politicians on both sides of the aisle who, despite taking a beating from non-establishment media outlets, had the audacity to dub it the as S 987 and HR 1962 the “Free Flow of Information Act.” Sponsor of the S987, Senator Diane Feinstein (D-CA) stated: “I think journalism has a certain tradecraft. It’s a profession. I recognize that everyone can think they’re a journalist,” Feinstein said. “The intent was to set up a test to determine a bona fide journalists.”

Eerily, TIME Magazine columnist Michael Grunwald tweeted about how he can’t wait to justify the drone strike that kills Julian Assange of WikiLeaks at around the same time this was all coming out. Journalist Chris Hedges’ lawsuit against the Obama administration over the NDAA was about whether or not the NDAA allowed for the legal assassination of journalists. Would the Free Flow of Information Act have made it that much easier to legally justify the murder of Assange or any journalist that questioned the state? To get answers, I visited Senator Feinstein’s San Diego office in 2013, where members of her office staff admitted they knew little about the legislation.

Writers in the new multimedia era make a narrowly tailored description of a journalist much more difficult and statements by staffers were not reassuring. Sample questions included; “Was it true or not that only salaried journalists are protected,” “who will provide press credentials,” “can a camera be used to film police in action by average civilians without credentials?”

The staff claimed ignorance of the bill in regards to the salary question, the legitimacy of WikiLeaks, protections for whistleblowers who leak information to the news media, and if the National Defense Authorization Act stifles free speech.

The staff provided a copy of a Congressional Research Service document dated May 31, 2013. The 12-page report summarized the legislation, and attempts to define the activities in which journalists may participate. Thankfully the legislation didn’t pass, but this government often does things without needing laws, and who knows if it will come up again. Similar language is reported to have been found in leaked drafts of the Trans-Pacific Partnership (TPP).

However, the First Amendment already protects a free press. Feinstein’s staff and the CRS report claim that a litany of governmental intrusions into credentialed members of the media that occurred throughout 2013, such as wiretapping of Associated Press journalists and Fox News national security reporters, justified the creation of the Free Flow of Information Act, which the summary claimed would better protect journalists from such intrusions by the government. There were also reassurances made by the staffer I met with that my particular status at the time as an unpaid journalist and proprietor of an independent media outlet would also have me leave me better protected under the bill, like AP or Fox would.

The summary claimed that many states have “shield” laws for journalists, but that a new federal statutory shield law is needed. “This report will provide an overview of the Constitutional status of a journalist’s privilege under the First Amendment,” the CRS summary read. The House version, HR 1962, stated the privilege would apply when the government tries to subpoena a journalist for confidential sources. Unfortunately, it further stated, one of the thornier questions facing the legislation is the question of how it would have defined the group of people covered by the privilege.

It continued: “It is clear that lawmakers and media advocates believe that the privilege should apply to journalists employed by The New York Times, the Associated Press, or The Cleveland Plain Dealer. However, the question of whether a person should be considered a journalist becomes murkier when the entity or person in question is a blogger, or a website like WikiLeaks.org.”

HR 1962 defined “covered person” to mean “a person who, for financial gain or livelihood, is engaged in journalism and includes any entity that employs that person, but does not include foreign powers (remember the secret FBI claim against Antiwar.com journalist Justin Raimondo for linking to a public, foreign website in an article relating to Israeli spies who were arrested on 9/11?), or those designated as terrorist organizations (remember the “terrorist” designation the UK government used to detain Glenn Greenwald’s partner David Miranda?). In other words, people who earn money as journalists, and those entities that employ them are covered by the bill.”

The summary continued, “Whether an entity that acts solely as a host or conduit for information it receives from outside sources, such as WikiLeaks.org, could be said to be engaging in journalism is unclear, and would likely need to be determined by a court.”

The legislation listed several instances, such as the prevention of terrorism, imminent threats, or disclosure of trade secrets as examples of violations of the law. Raimondo’s case was similar to Barrett Brown’s: both linked to information on a publicly available website.

The Senate version of the “media shield law” was slightly different and stipulates that journalists should acquire the newsgathering at the beginning of the story to garner full protections from the government. Many journalists cite this provision as a method for those in power or the object of an investigation to exploit lesser-known members of the media, effectively killing a story. The longer you wait after an event occurs to start gathering information, the less protections you would have been afforded had this law passed.

The Senate bill would have created a list of individuals and organizations that would be excluded from the definition of journalists including “agents of foreign powers, individuals on the terrorist watch list, those affiliated with terrorist organizations, and those who have committed terrorist acts.” This suggests that individual reporters may be placed on a special list just like the U.S.’s terrorist watch lists, drone strike kill lists, and no-fly lists.

If it were to have been signed into law in 2013, the “media shield law” could have had a chilling effect for reporters who gain national security information from whistleblowers like Edward Snowden. Equally concerning is the likely prosecution of confidential sources. In a post-9/11 America, journalists rely on inside sources and whistleblowers because the government has made a timely FOIA process nearly impossible.

On top of this, many writers aren’t technically salaried, especially in the case of journalists for non-profits like WikiLeaks or Antiwar.com that still publish information that is important and relevant to the news media cycle as well as the good of humanity. The proposed law didn’t address journalists who post links to already publicly available information, something that placed journalist Barrett Brown in a Texas prison with no chance of bail and a 63 month prison sentence. Linking to already existing websites was also what put Antiwar.com on an FBI watch list.

Such examples just go to show how if the government wants to target a journalist, they just go after low-hanging arbitrary fruit like linking to websites. There’s no data on who is subject to surveillance, rather than criminal charges, for actions similar to Brown’s — linking to publicly available information — though that was the subject of an ACLU’s lawsuit filed on behalf of Antiwar.com against the FBI for secret surveillance of the non-profit journalistic agency since the early days of the PATRIOT Act.

Perhaps most alarming was a document that WikiLeaks discovered in the Stratfor hack. The memo/email stated the CIA has a war on journalism, stating, “[CIA director John] Brennan is behind the witch hunts of investigative journalists learning information from inside the beltway sources. There is specific tasker from the WH (White House) to go after anyone printing materials negative to the Obama agenda.”

To bring this back to the Orwell introductory quote, I am not a PR person for Senator Feinstein nor President Obama nor any of the world’s biggest despotic countries (Saudi Arabia, Israel, Bahrain, UK, France, Turkey, etc.).

I am a journalist. Truth is the job of any and all journalists, from a paid major news anchor down to the unpaid civilian activist on the streets with a camera documenting the police state. We cannot and should not be defined by politicians.