Tag Archives: Open Government

National Security vs Press Freedom

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Bradley Manning is a hero, so say some. Notwithstanding the Freedom of Information Act, does the government have a constitutionally mandated obligation to limit dissemination of certain types of information – namely properly classified national defense information? Intimately linked to that question is the matter of journalists and

Classified information often involves defense information (Source: Greg Cundiff)

their legal and ethical obligations relating to classified information.

In an article posted on the Central Intelligence Agency website, James B. Bruce calls the US press, “an open vault of classified information on US intelligence collection sources and methods.” Part of the problem as Bruce sees it is that, “(n)early all of the compelling evidence in support of the argument that leaks are causing serious damage is available only in the classified domain.”

To illustrate the point about damage done to national security he quotes a former Russian military intelligence officer:

I was amazed—and Moscow was very appreciative—at how many times I found very sensitive information in American newspapers.  In my view, Americans tend to care more about scooping their competition than about national security, which made my job easier.

He faults the anti-espionage law as well as politicians, reporters and publishers for this threat to national security. Only one person has been convicted of leaking classified intelligence, and President Clinton pardoned him. Part of the problem is the legal ambiguity of leaking. The practice of leaking information to make a political point also contributes to the problem. Bruce calls for laws that hold both government personnel and reporters legally liable for leaks.

Legal Precedent

Thus far, there have been no controlling legal precedents that speak to the relationship between the First Amendment and publication of unlawfully gained information. In the conclusion of the report, “Criminal Prohibitions on the Publication of Classified Defense Information,” Jennifer K. Elsea writes, “Although cases involving disclosures of classified information to the press have been rare, it seems clear that courts have regarded such disclosures by government employees to be conduct that enjoys no First Amendment protection, regardless of the motives of the divulger or the value the release of such information might impart to public discourse. The Supreme Court has stated, however, that the question remains open whether the publication of unlawfully obtained information by the media can be punished consistent with the First Amendment.”

Not the Norm

While Bradley Manning currently and Daniel Ellsberg a generation ago make headlines with their releases of information it does not usually happen that way. In an article for American Journalism Review, “Washington Post Executive Editor Leonard Downie Jr. says national security articles seldom develop the way the public tends to assume: Not since Daniel Ellsberg leaked the Pentagon Papers to the New York Times in 1971 can he recall an instance in which a single person supplied an entire story to a journalist. Instead, a beat reporter such as the Post’s Dana Priest, who won a Pulitzer for her November story exposing the CIA’s secret prison system of “black sites” for hiding and interrogating some al Qaeda captives, “gradually unearths the outlines of a story.”’

Striking a Balance

A free press is guaranteed by the Bill of Rights (Source: Greg Cundiff)

Bruce notes that, “ the inherent tension between First Amendment rights and the government’s interest in protecting national security is dynamic, and may never be solved ‘once and for all.’ But the current balance so favors First Amendment rights that compelling constitutional interests involving national security can be superseded.”

There is little question that protecting the nation is a public good. However, Bradley Manning makes the same claim in an excerpt published by Glen Greenwald on Salon.com, “because it’s public data. . . . it belongs in the public domain -information should be free – it belongs in the public domain – because another state would just take advantage of the information… try and get some edge – if its out in the open . . . it should be a public good”

Natalie Davis, a working journalist puts it this way, “I am absolutely opposed to laws that seek to limit journalists from carrying out their sacred trust. However, if there is a line, it comes only when other’s lives are involved: Will publishing something get someone killed? Will it put undue hardship on INNOCENT people? Personally, that is my line.”

Please join the discussion and let us know where you stand on publishing classified information particularly and freedom of the press generally.

Free Press- ‘Bulwark Against Tyranny’

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Flag reflected from City Hall window

Journalists let us know how what goes on here reflects democratic values (source:Greg Cundiff)

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Article One enshrines the citizen’s toolkit for responsive government as the supreme law of the land. In a speech before the National Bar Association, Hon. Herbert Brownell, Jr. (Then Attorney General of the United States under President Dwight Eisenhower) said, “…when the press is free from censorship and suppression, it tends to assure the telling of the truth – an eternal bulwark against tyranny and dictatorship.”

A Question of Access

A journalist’s hands are tied without access to information about what the government is doing on behalf of its citizens. The Reporters Committee for Freedom of the Press finds that in the United States this access is grounded in the First Amendment’s free press provisions, Common Law, Federal Freedom of Information Act, and state open meeting laws.

Maryland Attorney General, Douglas F. Gansler writes that, “The public’s right to information about government activities lies at the heart of a democratic government.”

Maryland’s Public Information Act is comprehensive, allowing any person access to any public record. The Maryland Public Information Act Manual holds that “a person need not justify or explain a request to inspect records.” As in many areas of life, there are exceptions to the rule. Chapter 3 of the manual in addition to listing the exceptions provides that “these exceptions should be construed narrowly.”

Baltimore City Hall

Local decisions made here (source: Greg Cundiff

The Maryland Open Meetings Act Manual establishes that the general rule is that if a public body is meeting and the subject matter is covered by the Open Meetings Act, the body must meet in open session.”

Local Controversy

The Baltimore Development Corporation (BDC) is the development arm of city government. It provides contract “economic development services” to Baltimore City. The organization’s close relationship with the city is highlighted by its rank in returned search results for the term, “development” on the city’s website. It is number one.

The need for an outside development arm is subject to disagreement among reasonable people. A more pertinent question for citizens, journalists, and legislators to consider is one of open access.

In an email interview 11th District Baltimore City Councilman William Cole noted the importance of transparency by saying, “Any agency that is using public dollars should be subject to open meetings act requirements.” He has a court ruling to back him up. In a case involving condemnation under eminent domain The Washington Examiner reported that the Maryland Court of Appeals ruled, “papers and meetings of the Baltimore Development Corp. must be open to the public.”

Are Bloggers Journalists

Where do bloggers fit in this picture? Are they journalists or private citizens commenting on the affairs of the day? It depends on whom you ask.

The question commonly arises around shield laws. According to Bloggers Beware, a Harvard blog, “more than 30 states currently have shield laws that provide some protection to ‘journalists’.” Of concern to bloggers, however, is the definition of journalist. The article also says, “Many of these laws, however, are in need of updating as they limit their application only to individuals who have a professional affiliation with an established media entity or require “regular” employment as a journalist. Some even expressly exclude broadcast and electronic media.”

Mobile news unit on the road

To many, these are "real" journalists (source:Greg Cundiff)

Maryland’s shield law is a case in point. According to a report at the Student Press Law Center, the state reformed its law to include supervised journalism students, but did not include bloggers in its definition. The report noted that Delegate Sandy Rosenberg(D) “said that he had tried in the past to introduce legislation that would protect bloggers with no success, but that pending Congress’ decision on a federal shield bill, he would consider making another attempt.”

Closer to home Councilman Cole responded when asked if he considered bloggers journalists, “No. Most of the “news” blogs are pure opinion pieces with little to no fact checking or research. That’s not to say that the bloggers aren’t well-intentioned or that traditional media doesn’t get it wrong sometimes, too. It’s just not fair to call the medium journalism. I’d say the exception might be places like baltimorebrew or the patch which does have some editorial control.”

Bloggers, what do you think, are you a journalist? What steps do bloggers need to take to increase our credibility in the media marketplace? Blog readers, what do you expect out of blog? Share your views.