“Knowledge is power,” said English lawyer and philosopher Francis Bacon (1561–1626). But sometimes journalists have the knowledge while the government has the power. This can lead to clashes that, unfortunately for journalists, can sometimes lead to imprisonment and even death. While civil libel suits against journalists remain the media’s biggest financial danger, that danger pales in comparison to loss of freedom or life.
Jailing Journalists for Their Messages
Traditions of press freedom are not universal. Stifling ideas by stifling those who wield pens has been common in closed societies but has also occurred in societies known for openness. Dissident writer Alexander Solzhenitsyn languished in prison in the Gulag Archipelago before the fall of the Soviet Union. But the United States has stifled expression of opinions as well. While the First Amendment of the US Constitution proclaims: “Congress shall make no law . . . abridging the freedom of speech, or of the press,” that freedom has not proved absolute.
When government believes that ideas threaten its existence, then government is tempted to wield its power. In February 2007, an Egyptian appeals court overturned the one-year jail sentence of Ibrahim Eissa, a newspaper editor convicted of libeling President Hosni Mubarak. He had to pay a fine instead. In April 2007, Azerbaijani newspaper editor Eynulla Fatullayev was sentenced to two and a half years in jail for criminal libel; Hong Kong journalist Ching Cheong passed the two-year mark in a Chinese prison, where he is serving a five-year sentence on charges of spying for Taiwan. Rwandan editor Agnes Nkusi-Uwimana received a one-year sentence for criticizing her government. Ecuadorian journalist Nelson Fueltala received a 60-day jail sentence for insulting Pujili’s mayor. Paris-based Reporters without Borders said that Cuba’s jailing of Oscar Sanchez Madan raised the number of journalists in Cuban jails to 26.
Murder is also a problem for journalists. The New York-based Committee to Protect Journalists says that 13 reporters have been murdered in Russia since Vladimir Putin took power, while Reporters without Borders places the number at 21.
Historically, some governments acted much more brutally than they would today. England used to stifle dissent by shedding blood. One example is John Twyn, who in 1663 printed a book saying that the people had the right to revolt and even execute the king. Twyn did not write the book, but he refused to say who did write it and so was subjected to the standard treatment for treason. He was sentenced to be hanged, emasculated, disemboweled, quartered, and beheaded. Unfortunately, Twyn’s punishment was not unusual.
A lesser crime than treason was seditious libel – the crime of criticizing government or its officials. In England, seditious libel charges could land a person in front of the Star Chamber, a court that heard seditious libel cases from 1487 to 1641. Among its punishments for seditious libel were putting the convicted person in a pillory and ordering that prisoners’ ears be cut off and that their cheeks be branded with the letters “SL” for seditious libel.
Us History of Freedom of Speech and The Press
While the United States avoided most of the bloodier aspects of dealing with dissent, its history includes imprisonment for dissent well into the twentieth century. Congress passed the Espionage Act of 1917. Under the Act, people could be punished for such things as obstructing military recruitment or causing disloyalty or insubordination within the armed forces. Also, the law allowed the Postmaster General to exclude seditious material from the mail. The following year, 1918, Congress also made it a crime to urge reduction of production of necessary war materials, such as ammunition.
This set the scene for the confrontation that began the interpretation of the First Amendment by the US Supreme Court in 1919 in Schenck v. United States. Schenck was the general secretary of the Socialist Party of the United States. He and some other defendants mailed some leaflets out to draft-age young men, saying that the draft violated the 13th Amendment of the US Constitution, which prohibits slavery or involuntary servitude.
The US government said that these leaflets were illegal because they encouraged obstruction of the draft and that the defendants unlawfully used the mail to disseminate the leaflets. Found guilty of violating the Espionage Act, Schenck and his co-defendants appealed, claiming that their leaflets were protected by the First Amendment.
The US Supreme Court upheld the convictions. Justice Oliver Wendell Holmes, writing for the Court, articulated his “clear and present danger” test: “We admit that in many places and in ordinary times the defendants in saying all that was said . . . would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” Congress had the right to stamp out words that created a “clear and present danger,” Holmes concluded. “It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight.”
Later in 1919, Holmes dissented when the Supreme Court upheld Espionage Act convictions in Abrams v. United States. In the summer of 1918, the United States had sent marines to Siberia as a strategic move against the Germans on the eastern front. But Abrams and his friends thought that this was a US attempt to crush the Russian Revolution. So they put out pamphlets that verbally attacked the special American expeditionary force, which they mistakenly claimed was sent to Russia to defeat the new communist revolutionary government.
The majority opinion said of Abrams and his friends that “even if their primary purpose and intent was to aid the cause of the Russian Revolution, the plan of action which they adopted necessarily involved . . . defeat of the war program of the United States.”
In his dissent, Holmes said, “In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them.” Holmes added, “[W]hen men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas, – that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
In 1940 the US Congress passed the Alien Registration Act, also known as the “Smith Act,” which prohibited advocating violent overthrow of the government, printing anything that advocated violent overthrow of the government, or conspiring with others to do so.
In 1951, the US Supreme Court heard its first case arising under the Smith Act, Dennis v. United States. Eleven defendants were charged with conspiring to organize a Communist Party to advocate violent overthrow of the government. The Court considered both the “gravity of the evil” and the probability that evil would occur in order to decide how much invasion of free speech was warranted. The Court concluded that a highly organized conspiracy created a clear and present danger that justified the convictions.
Because Dennis upheld the convictions, the government continued to prosecute communists under the Smith Act, including lower echelon communists. But in 1969, the Court majority decided that the danger should indeed be “imminent,” that is, that the danger should be just on the verge of happening before speech could be prohibited. In Brandenburg v. Ohio, the Court said, “[C]onstitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions.” In short, mere advocacy may not be punished, the Supreme Court said. More is required. Advocacy must meet the subjective test of being directed to inciting or producing imminent lawless action, and advocacy must also meet the objective test of being “likely to incite or produce such actions.”
The Brandenburg test protects orators, distributors of leaflets, editorial writers, and anyone expressing ideas that might arguably “incite” others to commit harmful acts. The Brandenburg test protected the late Tupac Shakur when a widow claimed that his “gangsta rap” incited a teenager speeding down a Texas highway to shoot and kill her husband, a Texas trooper. Brandenburg protected Ozzy Osbourne and Judas Priest against claims that their suicide music incited teenagers to kill themselves. It has protected producers of TV shows, magazines, ads, and games. It protected Oliver Stone against claims that he incited copycat murders with his movie Natural Born Killers. News reports have also inspired copycat crimes, including murders, and the journalists involved would receive Brandenburg protection, if needed.
While journalists, like everyone else in the United States, receive protection from incitement charges under the Brandenburg case, this does not mean that they can advocate anything they want. The prohibitions under which Schenck and others were convicted in 1919, obstruction of military recruitment, is still a crime under federal law, with a possible 20-year imprisonment. And advocating overthrow of the government, under which Dennis and many other communists were convicted, is likewise still a federal crime with a possible 20-year sentence.
Shielding Journalists Who Protect Their Sources
While few journalists in the United States have been put in jail recently for what they say, they have been going to jail for what they refuse to say. When federal judges order journalists to appear before federal grand juries and to reveal confidential sources of information, journalists who refuse risk jail time as well as fines.
For example, Josh Wolf, a “videographer,” spent 226 days in captivity in California. Wolf refused to testify before a federal grand jury and hand over his raw video tape of a G8 Summit protest that resulted in injury to a police officer in San Francisco in July 2005. As part of an agreement for his own release, he released the video tape.
Broadcast journalist Jim Taricani spent four months under house arrest in 2004 –2005. He refused a federal judge’s order to reveal the source of an FBI video tape showing a Providence official accepting an envelope full of cash from an undercover FBI agent.
New York Times reporter Judith Miller spent 85 days in jail in 2004 –2005 after refusing to reveal the source of a leak of the name of a CIA undercover agent, Valerie Plame. The US Supreme Court refused to hear her case.
In 2001, Vanessa Leggett, a freelance, spent a record 168 days in jail for refusing a federal judge’s order to hand over notes and tapes of interviews she had made while writing a book about the murder of a Houston socialite, Doris Angleton.
Why do journalists fight to protect their sources? Some object that compelling disclosure of sources is equivalent to turning journalists into investigators for the government or a party in a lawsuit. More importantly, some fear confidential sources will dry up, obstructing the free flow of information to the public. Journalists’ primary goal in promising confidentiality to a source is to gain information that the journalist could not gain in any other way. The source is either the only individual or part of a small group that knows the information. The source is divulging information to the journalist despite the fact that it would be adverse to the source’s self-interest if he or she were known to be the source. The adversity that the source would experience if his or her identity became known could perhaps include criminal prosecution, loss of a job, loss of esteem in the community due to the source’s participation in wrongdoing or the source’s being viewed as disloyal, or, in the most egregious circumstances, even loss of life.
Not revealing the identity of a source is considered by responsible journalists to be a matter of fiduciary duty. This fiduciary duty to the source is an obligation of the highest order because of the enormous personal risks the source may be taking in furnishing information. The source is placing his or her trust in the journalist based on the journalist’s promise of confidentiality. The source’s confidence that the reporter will keep the promise is thus key to the source’s divulging sensitive information. In short, confidence in confidentiality is imperative because a breakdown in confidence leads ultimately to a loss of information for society. A gap in information will occur, and the effect on society of that gap will depend on the importance of that lost information.
The problem for American journalists is that there is no federal law to shield reporters from being forced to divulge sources to grand juries. While Congress has considered such a law over the years, none has passed. But a majority of states (34 out of 50, along with the District of Columbia, as of mid-2007) do have shield laws. Some state shield laws give better protection than others, depending on how broad or narrow they are. For example, does a shield law only cover sources, or does it also cover confidential information? How broad is the definition of a journalist? When does the privilege apply? Does it apply when a journalist is compelled to appear before a grand jury, a court, or a legislative committee? Does it apply when a journalist is on trial for libel? Is the privilege absolute, or is it a qualified privilege where a judge balances interests?
In 1972, the US Supreme Court in Branzburg v. Hayes said in a 5 – 4 decision that the First Amendment does not give journalists shield protection. In balancing interests, the Court simply concluded that the obligation to appear in front of a grand jury and give testimony when ordered to do so outweighs First Amendment considerations. The Court held, “We cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.”
The Branzburg Court recognized that some sources may dry up, and there may be some constriction of news, but how much is “speculative,” the Court said. Also, the Court mentioned a practical consideration: if it granted a “constitutional newsman’s privilege,” then sooner or later the Court was going to have to define who qualifies as a “newsman.” The Court did say, however, that the federal government and the states could fashion statutory privileges for journalists.
Federal judges have, indeed, granted journalists protection from revealing sources in cases not involving grand juries. But so long as the federal government does not pass a shield law, journalists subpoenaed to appear in front of grand juries will continue to go to jail in order to protect sources.
A problem remains concerning who should qualify as a journalist, especially in the Internet age of bloggers. A narrow definition would only include persons working for newspaper, magazine, or broadcast companies. A broad definition would cover any person wishing to gather information for the purpose of disseminating it to the public through any means, including the Internet.
Clearly, confidential sources can provide information that can make a big difference in the functioning of a government. Arguably, the most famous such confidential source from the United States was “Deep Throat.” Reporters Bob Woodward and Carl Bernstein published stories in the Washington Post linking aides of then-president Richard Nixon to a break-in at the Democratic National Headquarters in Washington, DC. No federal judge ordered the journalists to reveal their source. But in May 2005, Mark Felt, a former FBI deputy director, revealed himself as “Deep Throat.”
The threat of jail sentences for refusing to reveal sources is not a purely American phenomenon. In 2005, two Australian journalists from the Herald Sun, Michael Harvey and Gerard McManus, were threatened with imprisonment for refusing to reveal a source. This has helped prompt calls for passage of strong shield laws in Australia.
Journalist’s Privilege: An International and Foreign Law Perspective
Journalists in some other countries do receive protection from revealing confidential sources. For example, in October 2006, Japan’s Supreme Court protected a reporter from the Japan Broadcasting Company. Presiding Justice Toyozo Ueda ruled that a reporter’s protection of confidential sources is a form of protecting one’s occupation.
Sweden is another example. In Sweden, the journalist’s privilege is a constitutional right under the Freedom of the Press Act, which is one of the three parts of the Swedish Constitution. The Freedom of the Press Act, first adopted in 1766, established the right of anonymity of “authors” in 1812. When it was strengthened in 1949, it protected news sources, especially for the print media. Singularly significant is that the Swedish shield law, one of the strongest in Europe, empowers sources to take criminal prosecution against journalists if their confidential identity is revealed without their authorization. It further forbids public officials to inquire about the journalistic sources. If public officials violate the law, they face fines or up to one year in jail.
Most importantly, international law on the journalist’s privilege is far more mediafriendly than US law. Two international courts have accepted claims that the confidentiality of journalistic sources is part of a right to freedom of expression. The European Court of Human Rights (ECHR) declared in 1996 that journalists have a right not to disclose their sources unless an overriding countervailing interest outweighs the confidentiality of news sources. The International Criminal Tribunal for the former Yugoslavia (ICTY) held in 2002 that war correspondents cannot be compelled to testify about their sources, except under extraordinary circumstances.
Still, going to jail seems to be an occupational hazard for journalists worldwide. Sometimes the offense is criticizing government or its policies. Sometimes the offense is refusing to reveal confidential sources. Sometimes, some journalists might say, the offense is merely speaking the truth. Truth sometimes has the power to set one free, as the adage goes, but sometimes it is government that has the power and it is the truth teller who loses freedom.
- Abrams v. United States, 250 US 616 (1919).
- Abrams, F. (2005). Speaking freely. New York: Viking.
- Baker, C. E. (2007). The independent significance of the Press Clause under existing law. University of Pennsylvania Law School, Scholarship at Penn Law, paper 139. At https://scholarship.law.upenn.edu/faculty_scholarship/133/.
- Barendt, E. (2005). Freedom of speech, 2nd edn. Oxford: Oxford University Press.
- Bezanson, R. (2003). How Free Can the Press Be? Urbana, IL: University of Illinois Press.
- Brandenburg v. Ohio, 395 US 444 (1969).
- Branzburg v. Hayes, 408 US 665 (1972).
- Coliver, S. (ed.) (1993). Press law and practice: A comparative study of press freedom in European and other democracies. London: Article 19.
- Collings, A. (2001). Words of fire. New York: New York University Press.
- Debs v. United States, 249 US 211 (1919).
- Dennis v. United States, 341 US 494 (1951).
- Glasser, C. (2006). International libel and privacy handbook: A global reference for journalists, publishers, webmasters, and lawyers. New York: Bloomberg.
- In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005).
- In re Special Proceedings, James Taricani, 373 F.3d 37 (1st Cir. 2004).
- Schauer, F. (2005). Toward an institutional First Amendment. Minnesota Law Review, 89, 1256 – 1279.
- Schenck v. United States, 249 US 47 (1919).