Inside
the First Amendment Journalists in jail: bad news for a democracy
By Paul K. McMasters
First Amendment Center
It can be something of a jolt to the democratic sensibilities
of most Americans when they learn that a journalist
has been arrested for treason, held for months without
public charges, denied bail not by a court but by
the government accuser, and is destined to be tried
in secret.
And even though that injustice unfolds in China, quite
distant from us geographically and constitutionally,
there are elements of such government action that
offer unsettling reminders that from time to time
we threaten our journalists with jail, too.
Zhao Yan was charged by Chinese authorities with the
capital crime of leaking state secrets after his employer,
The New York Times, published an article about the
impending resignation of a top government official.
Zhao and the Times both assert that Zhao had nothing
to do with the article; nevertheless he faces a harsh
prison sentence.
Zhao is not alone. The Times reports that 30 other
journalists are in jail in China right now on similar
charges.
Such a thing couldn't happen in the United States,
at least not in that way.
We have the First Amendment to protect journalists.
We have independent courts to safeguard the rights
of all Americans. It is not in our nature to charge
journalists with treason when they disclose sensitive
government information.
We are much more circumspect when we threaten journalists
who irritate government officials or confound government
procedures. We try to follow the law and we respect
the Constitution.
But we still find ways to send journalists to jail.
For example, one way around current law and the First
Amendment is to go after journalists' confidential
sources - and then send the journalists to jail if
they refuse to disclose those sources to a grand jury
investigating a possible crime.
That is why Judith Miller, also a Times employee,
has been incarcerated nearly three months in a federal
prison, the longest term ever served by a newspaper
reporter in the United States. Miller is not in prison
for revealing "state secrets"; she did not
even write an article. Instead, she was held in contempt
of court for refusing to tell a grand jury who in
the government she talked to, or, more probably, who
talked to her.
She has become collateral damage in a special prosecutor's
investigation into whether administration officials
broke the law by leaking the identity of a CIA officer.
In fact, it is possible for the prosecutor to end
his two-year inquiry with no charges against anyone
and only one person having served time: Judith Miller.
She is supposed to get out of prison when the grand
jury's term ends in October, but special counsel Patrick
Fitzgerald has the option of increasing the pressure
to reveal her source by threatening to extend her
incarceration, even though there is a good possibility
she has nothing to tell him that he doesn't already
know.
Although Miller is the only reporter jailed in this
case, other reporters in the case escaped that fate
only by securing release of confidentiality from their
sources or otherwise cooperating with Fitzgerald.
Several other journalists face the same sort of coercion
and possible imprisonment in two separate cases.
There are those who would like to have other tools
for punishing journalists or making them an unofficial
arm of law enforcement. For instance, members of Congress
and others over the years have floated legislative
proposals that would punish anyone who disclosed sensitive
or classified material to the public or the press.
As with the grand jury investigations, such a law
would target journalists indirectly by essentially
making them co-conspirators with those who leaked
sensitive national-security information.
In fact, just such a law was embedded in an intelligence
authorization act passed by Congress in 2000 and then
vetoed by President Clinton.
The concept still tempts lawmakers.
In a recent speech, Rep. Pete Hoekstra, R-Mich., chairman
of the House Permanent Select Committee on Intelligence,
called for a comprehensive law providing criminal
penalties for the unauthorized disclosure of classified
information "regardless of the type of information
or the recipient involved." On Sept. 14, he held
the first of a series of hearings on the issue - in
secret.
Adding yet another tool for threatening and jailing
journalists would be a mistake. It would further tilt
democratic procedures away from government accountability
and toward official secrecy.
Finally, here is another jolt to our democratic sensibilities.
Only two nations in our hemisphere have journalists
in jail for the principled practice of their profession:
communist Cuba and the United States. Like China,
Cuba has many journalists in prison while the U.S.
has only one - at the moment.
But as Eduardo Bertoni, a human rights official with
the Organization of American States, said recently,
"the presence of even one journalist in jail
because of what he or she does is always bad news,
whether it occurs in a society with a firmly rooted
democracy or in one that is still striving to be free."
Paul K. McMasters is First Amendment ombudsman
at the First Amendment Center,
1101 Wilson Blvd., Arlington, Va. 22209. Web: www.firstamendmentcenter.org.
E-mail: pmcmasters@fac.org.
