Freedom of the Press
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While the United States retains a diverse media landscape and strong legal protections for journalistic expression, it experienced setbacks in 2013, primarily due to national security policy. Press freedom suffered from heightened restrictions on reporters’ access to officials from the Obama administration and to government information, particularly concerning national security; government eavesdropping on journalists and news outlets; and continued efforts to compel journalists to reveal the sources of leaked information.
The United States has one of the world’s strongest systems of legal protection for media independence. The First Amendment of the U.S. constitution provides the core guarantee of press freedom and freedom of speech. While those rights have come under pressure at various times in the country’s history, the independent court system has repeatedly issued rulings that uphold and expand the right of journalists to be free of state control. The courts have also given the press broad protection from libel and defamation suits that involve commentary on public figures, though libel formally remains a criminal offense in a number of states. In a case that could have important implications for online journalism, journalist Barrett Brown was indicted in late 2012 for posting a link in a chat room to a file that was publicly available on the internet, but contained stolen data (obtained via hacking) from Stratfor Global, an intelligence contractor. Brown was not involved in obtaining the data, and none of the three charges filed against him related to the hacking. The Committee to Protect Journalists (CPJ) and other media watchdogs expressed concern over the case—which was pending at the end of 2013—as it could result in the criminalization of linking to documents already made public by others in online articles, a common journalistic practice.
Some 39 states have shield laws that give journalists either absolute or limited protection from orders to reveal confidential sources or other information gathered in the course of their work. The federal government, however, offers no such protection, and efforts to adopt a federal shield law have stalled due to opposition from the Obama administration and congressional unwillingness to treat the issue as a priority. After the administration was criticized in 2013 for accessing the telephone and e-mail records of journalists, it reversed course and indicated a favorable attitude toward a revised federal shield bill. The latest attempt at such a law, the Free Flow of Information Act, made slow progress through the House and the Senate in late 2013; the Senate version was approved by the Judiciary Committee in early November. Much of the debate surrounding the bill concerned the issue of whether nontraditional journalists and online media workers would be protected under its provisions. The amended version defines a “covered journalist” to include salaried journalists at major news outlets as well as freelance or unsalaried reporters, writers, or photographers who engage in regular newsgathering or information dissemination to the public. A final provision of the bill’s definition allows for a judge to extend protection to nonjournalists if it is deemed to be in the interest of professional newsgathering and investigative journalism. The bill had not been introduced for a floor vote by year’s end.
Over the past decade, federal prosecutors have provoked a series of controversies by attempting to compel testimony from journalists in high-profile cases, including some centered on government workers charged with leaking information to the media or lobbyists. Until recently, judges have tended to side with prosecutors and have occasionally held journalists in contempt of court (and in rare cases, sent them to jail) for refusing to identify sources. While some of the cases were initiated by the Department of Justice (DOJ) under President George W. Bush, the administration of President Barack Obama has proven even more zealous in pursuing government secrecy cases and issuing demands for information from reporters. Indeed, CPJ has reported that since 2009 there have been eight felony criminal prosecutions for leaking classified information, a sharp increase from the three cases brought by all previous administrations.
The case of Army private Chelsea Manning (formerly Bradley Manning) has drawn attention from civil libertarians. Manning was arrested in 2010 for providing hundreds of thousands of classified documents to the antisecrecy organization WikiLeaks. Held under harsh conditions at military penal institutions, Manning pleaded guilty in February 2013 to lesser charges of misusing classified information. However, after a trial, she was convicted in August on 20 of 22 charges and sentenced to 35 years in a military prison; notably, Manning was acquitted of the most serious charge, aiding the enemy. Although no journalists were ensnared in the case, some critics have questioned the severity of Manning’s sentence and accused the government of using it to send a harsh deterrent message to potential future leakers.
The best-known current case involving a journalist is that of James Risen, a prize-winning New York Times reporter and author of several books on national security themes. The DOJ has sought on multiple occasions to compel Risen to testify about information he may have received from Jeffrey Sterling, a former Central Intelligence Agency (CIA) employee, in the course of researching a book about American efforts to disrupt Iran’s nuclear program. The DOJ’s efforts were restricted by a 2011 federal court ruling that reporters are not to be called before grand juries if the government has not already exhausted other means to gather the information in question, or if enough material for an indictment has already been obtained. However, in July 2013, a federal appeals court ruled that the First Amendment did not protect Risen from being forced to testify against his source. In response, Risen indicated that he would appeal the case to the Supreme Court.
In another case, in May 2013, the DOJ revealed that three months earlier it had secretly subpoenaed and seized records for more than 20 telephone lines used by reporters at the Associated Press (AP). The subpoena was part of an investigation into the source for a 2012 AP story about American covert operations in Yemen. A week later, it was revealed that the DOJ had secretly subpoenaed and seized the e-mail and telephone records of James Rosen, a Fox News correspondent. That action was part of a leak investigation into Stephen Jin-Woo Kim, a former State Department contractor who eventually pleaded guilty to one count of illegally disclosing classified information. The AP and Fox News record seizures triggered heavy criticism from the media, civil libertarians, and members of Congress. Subsequently, Attorney General Eric Holder held meetings with media representatives to discuss a review of DOJ guidelines on subpoenas and journalist-related investigations, while President Obama issued statements expressing the administration’s commitment to journalistic freedom, saying journalists “should not be at legal risk for doing their jobs.” The incidents also led to the administration’s more favorable attitude toward the proposed federal shield law. After its policy review, the DOJ issued new guidelines that significantly narrowed conditions under which the government could gain access to records of journalists’ communications with sources.
The right to access official information, with some exceptions, is protected under the 1966 Freedom of Information Act (FOIA). In one of its first acts after taking office, the Obama administration announced a more expansive interpretation of the law than had prevailed under President Bush. In 2009, the attorney general declared that records should be released to the public unless doing so would violate another law or cause foreseeable harm to protected interests, including personal privacy and national security. Despite this and other pro-disclosure rhetoric, the administration has drawn criticism for its record on transparency. Complaints have focused on the government’s refusal to release many documents concerning national security and counterterrorism issues, and its heavy redaction of documents that are made available. In 2013, more federal FOIA requests were censored or denied than were fully granted. Other complaints have focused on the failure of various federal agencies to respond to FOIA requests in a timely fashion or at all. Analysis conducted by the AP showed that response times by federal agencies were longer in 2013 than in 2012, despite White House statements to the contrary. Furthermore, the National Security Archive at George Washington University reported that 59 of 100 federal agencies have “ignored” the stipulations of Attorney General Holder’s 2009 memorandum declaring a “presumption of disclosure” by failing to update departmental guidelines and procedures.
Official regulation of media content in the United States is minimal, and there are no industrywide self-regulatory bodies, for either print or broadcast media, although some individual outlets do have an ombudsperson. By law, radio and television airwaves are considered public property and are leased to private stations, which determine content. The Federal Communications Commission (FCC) is charged with administering licenses and reviewing content to ensure that it complies with federal limits on indecent or offensive material in terrestrial broadcasts. While the judiciary has declined to issue a broad ruling on the FCC’s authority to regulate indecency on the airwaves, recent decisions have chipped away at the agency’s power.
Although the government does not restrict political or social engagement over the internet, there are laws banning or regulating promulgation of child-abuse images, exposure of minors to indecent content, dissemination of confidential information, online gambling, and the use of copyrighted material. The search-engine giant Google reported that content-removal requests from government entities at the local, state, and federal levels had risen steadily in recent years. Two proposed laws—the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA)—that would have allowed the government to order the blocking of entire websites if they contained copyrighted material without authorization were withdrawn in 2012 after internet companies and advocates of internet freedom staged a series of virtual protests, including blackouts by a number of frequently used sites.
In 2013, former National Security Agency (NSA) contractor Edward Snowden’s revelations of extensive surveillance by the signals-intelligence agency generated widespread criticism of American policy both from domestic and foreign sources. The voluminous material leaked by Snowden contained little that implicated the NSA in the deliberate surveillance of journalists. The principal exception was a document that indicated a successful effort to gain access to the international communications of the Qatar-based news broadcaster Al-Jazeera, which has been critical of U.S. policies in Afghanistan and Iraq and of American conduct in the war on terrorism. A report produced in December by a presidential-level commission found no evidence that NSA surveillance technologies had been used to violate the rights of Americans, but it did contain a number of recommendations for reform of current practices, including ending the bulk collection and storage of phone data. Also in December, a federal judge ruled that such bulk-collection practices were “likely unconstitutional” and condemned them in no uncertain terms, stating he could not “imagine a more ‘indiscriminate’ and ‘arbitrary invasion.’” Civil libertarians and press freedom advocates pointed to the potential effect of the data collection on the rights of Americans, and free speech organizations asserted that the surveillance revelations were causing writers to practice self-censorship. A report published in late 2013 by the PEN American Center on the chilling effect of the NSA’s surveillance activities concluded that American writers increasingly assume they are under surveillance, which fosters a reluctance to investigate and publish stories about certain subjects. Nonetheless, the American press continued to conduct frequent investigative reporting on drone strikes, U.S. cyberwar initiatives, and other national security themes.
An increasing number of news outlets are aggressively partisan in their coverage of political affairs. The press itself is frequently a source of contention, with conservatives and liberals alike accusing the media of bias. The appearance of enhanced polarization is driven to some degree by the growing influence of all-news cable television channels and blogs, many of which display an obvious editorial slant. The popularity of talk-radio shows, whose hosts are primarily conservative, has also played an important role in media polarization. Nonetheless, most U.S. newspapers make a serious effort to keep a wall of separation between news reporting, commentary, and editorials. The trend toward fewer family-owned newspapers and more newspapers under corporate control has contributed to a less partisan, if blander, editorial tone.
The Obama administration has come under fire for effectively limiting journalistic access to federal officials, as well as official events. The president held fewer press conferences in his first term than did his predecessors, and favors interviews with friendly media to present his perspective to the public. Journalists have also complained of an environment in which officials are less likely to discuss policy issues with reporters than during previous administrations. In late 2013, the White House Correspondents’ Association, with the support of most major U.S. media outlets, sent a letter to the White House protesting new restrictions on photographers covering the presidency. The letter documented numerous occasions on which photojournalists were barred from covering the president’s activities, only to have the White House release “official” photographs of its own. Given that the rationale for barring press photographers is that the events in question are private, the release of official photographs is troubling.
Since the terrorist attacks of 2001, the courts have adjudicated a number of requests by journalists who seek reporting access to proceedings and facilities related to counterterrorism. For example, the federal judiciary has been asked to rule on reporters’ access to the military detention facility at Guantanamo Bay, where over 100 detainees associated with counterterrorism efforts or the war in Afghanistan continue to be held. In early 2013, a military judge denied a request for television coverage of the Guantanamo Bay war crimes trial of five individuals for their connections to the 2001 attacks. Journalists who have attempted to cover routine events or conditions at Guantanamo have noted increased restrictions on their ability to do so. Also during 2013, controversy surrounded the coverage of the court martial of Chelsea Manning at Fort Meade, Maryland; public access to the legal documents of the case was blocked, and a ban was imposed on mobile phones and recording equipment in the courtroom during trial proceedings. Furthermore, while 350 journalists filed for accreditation to cover the trial, only 70 were approved. In a move greeted with “qualified satisfaction” by media watchdogs, the trial judge allowed two private stenographers to record the proceedings.
Domestic and foreign journalists are generally able to physically cover news stories with few impediments. However, from time to time there are cases of foreign journalists being denied entry to the United States, usually on the basis of vague national security rationales. In September 2013, the German-Bulgarian writer and journalist Ilija Trojanow was prevented from boarding a flight to the United States from Brazil without explanation. Trojanow, who was en route to a conference in Colorado, had written extensively and critically on American surveillance programs. After also being denied a U.S. visa during the year, Trojanow was finally admitted to the country to speak at a conference in New York in mid-November.
In recent years there have been few physical attacks on journalists in reprisal for their work, and none were reported in 2013. However, journalists covering demonstrations or other breaking news events are occasionally denied access or even detained briefly by police, as happened during the 2011–12 “Occupy” protests in several U.S. cities. Police departments in some cities at times deny press credentials to those representing nontraditional media.
Media in the United States are overwhelmingly under private ownership. Nevertheless, National Public Radio (NPR) and television’s Public Broadcasting Service (PBS), which are funded by a combination of government allocations and private contributions, enjoy substantial audiences. Meanwhile, American cable networks in some markets carry a variety of foreign news sources, including Al-Jazeera America, the British Broadcasting Corporation (BBC), Spanish-language services, and state-controlled television channels from Russia and China.
Traditional media, including print and broadcast outlets, have suffered financially from the increasing popularity of the internet as a news source. The newspaper industry in the United States is undergoing a period of decline and readjustment. There are an estimated 1,400 daily newspapers geared primarily toward local readerships, but even the largest and most prestigious papers have faced falling circulations and advertising revenues and been forced to cut staff. The Newspaper Association of America reported that overall newspaper revenue declined by 2.6 percent in 2013 compared with the previous year, and a Pew Research Center report noted that “hundreds of newspaper jobs” were eliminated. To compensate for reduced staff, many outlets are increasingly turning to freelance journalists. However, a survey conducted by Harvard University in 2013 concluded that employed journalists are more likely to be granted press credentials than are freelance journalists, a trend which if it persists could affect outlets’ newsgathering ability. Most newspapers have rebalanced their presentation to emphasize website and multimedia content. A few have dropped print editions entirely, while others publish only a few times a week. Financial weakness has affected outlets’ news coverage as a whole, but particularly their ability to conduct investigative reporting and cover foreign news, which require considerable resources. It has also led to increased pressure from advertisers and the growing use of “sponsored content.”
More recently, coverage of local news by television stations in some medium-sized cities has been affected by economic problems. The result in some areas has been a sharing of resources, including journalistic staff, among competing stations. Pew reported that of the U.S. stations that air news broadcasts, 25 percent do not produce their own content. However, viewership of local news increased in “every key time slot” in 2013, while the newspaper chains Gannett and Tribune Co., which also own broadcasting assets, shifted investment to local television stations. Large American cable news networks did not fare well economically in 2013, with MSNBC and CNN experiencing advertising revenue losses.
The decline in coverage offered by traditional media has been partly offset by the growth of cable television and internet journalism. In 2013, 69 percent of Americans listed television as their principal source of news, followed by 50 percent listing the internet, 28 percent newspapers, and 23 percent radio. Approximately 84 percent of Americans used the internet in 2013. The number and influence of news-focused websites and blogs have grown rapidly over the past decade, and social-media platforms such as Twitter and Facebook have gained prominence as a means of breaking news and mobilizing public opinion on political and policy issues. Sites such as BuzzFeed and Mashable took steps in 2013 to improve their journalistic credentials, with Pulitzer Prize winner Mark Schoofs joining BuzzFeed’s news team and Jim Roberts of the New York Times joining Mashable. Vice, an online media company, had more than 1,000 global employees at the end of 2013 and is establishing itself as an international news source.
To combat the decline in investigative journalism, philanthropic foundations have provided resources for the creation of projects that focus on in-depth coverage of education, criminal justice, and corruption issues. For example, ProPublica was established in 2007 as a nonprofit, independent news agency dedicated to investigative journalism; it is financed by a variety of foundations. In 2013, Glenn Greenwald, the journalist who broke the Snowden story, partnered with Pierre Omidyar, founder of the online auction site eBay, to create First Look Media, composed of a nonprofit media and investigative journalism site as well as a profit-seeking “media concern” whose proceeds will support independent journalism. By the end of the year, Omidyar had made an initial investment of $50 million out of a total $250 million commitment to the venture. While such initiatives have helped to fill the vacuum created by the deterioration of newspapers, questions have been raised about the long-term sustainability of enterprises that depend on large private donations for survival.
Media ownership concentration is an ongoing concern in the United States. Pew reported a spike in local television station sales in 2013, including the purchase of 63 stations by Sinclair, already the country’s largest owner of local stations. At the end of 2013, Sinclair owned 167 stations across 77 markets. Other concerns arose following the purchase of media entities by owners with no previous experience in journalism. In August 2013, the Washington Post, one of America’s most influential newspapers, was purchased by Jeffrey Bezos, founder of the online commerce giant Amazon.com. Also that month, the Boston Globe was purchased by sports-team owner John Henry. In 2011, the FCC approved the acquisition of NBC Universal, including the national NBC television network, by Comcast, a major cable provider. Among other terms of approval, the FCC stipulated that Comcast’s cable offerings could not favor content generated by its own media entities over that produced by other companies. The FCC regularly considers policies that would ease restrictions on a single corporation’s ownership of both television stations and newspapers in a single local market, and in recent years the trend in FCC rulings has been toward a loosening of such restrictions.