Obama’s struggle: How free should the press be?

Deep into his one-hour speech Thursday on counterterrorism policy, President Obama reached a topic that is near and dear to the news media’s heart: the ability of journalists to pursue their craft without fear of government intrusion. 

Mr. Obama announced that Attorney General Eric Holder will conduct a review of the guidelines governing Justice Department investigations into reporters’ activities, with input from media organizations.  Mr. Holder is to report back to the president by July 12.

Chances are, Holder already knows what he will hear: Hands off our phone records and emails. Recent revelations that prosecutors have accessed journalists’ private data have sparked an outcry not just from the media, but also from the public and members of Congress of both parties. The Obama administration has defended its aggressive tactics in tracking down leaks of sensitive national security information.

But in his address, Obama demonstrated an ambivalence toward this approach, as he described the balance he is trying to strike between protecting national security and “the freedoms that make us who we are.” It was a central theme of his speech.    

“As commander in chief, I believe we must keep information secret that protects our operations and our people in the field. To do so, we must enforce consequences for those who break the law and breach their commitment to protect classified information,” Obama said. “But a free press is also essential for our democracy.”

The president also said that journalists should not be at legal risk for doing their jobs, and repeated his new support for a media shield law to guard against what he called “government overreach.”

Last week, the Obama administration asked Sen. Charles Schumer (D) of New York to reintroduce legislation aimed at protecting journalists’ ability to keep the identity of their sources confidential. Four years ago, the administration sought to weaken the proposed shield law, which played a role in its demise.

Now, it’s a new day. First came the news that federal investigators, armed with a subpoena, had accessed the records of at least 20 phone lines used by Associated Press reporters. The case in question reportedly dealt with the foiling of a bomb plot in Yemen last year.

More recently, court documents first reported by the Washington Post revealed that a federal prosecutor had obtained a search warrant to access the phone records and emails of Fox News reporter James Rosen. Mr. Rosen was listed in the warrant as having “potential criminal liability” in the matter of a State Department contractor accused of leaking classified information about North Korea’s nuclear test plans.

The public backlash over the seizure of reporters’ private records has been fierce. And now the administration is singing a different tune.

“I simply think the administration didn’t anticipate that there would be such a strong reaction,” says Jane Kirtley, a professor of media law at the University of Minnesota in Minneapolis. “This is not Sept. 13, 2001, when the public was prepared to say, ‘Do whatever you need to keep us safe.’ There’s been a great deal of skepticism from both the left and right about the administration’s justification of a lot of things on the grounds of fighting terrorism.”

But it’s not an “either-or” situation.  Defending national security remains a paramount concern, and must be balanced against the need to protect press freedoms, the president said.  And clearly, there will be trade-offs. The guidelines for press investigations that Holder is reviewing contain exceptions for cases involving national security, and as long as there are exceptions, there will always be the possibility that journalists’ activities attract federal investigators.  

It’s not clear, for example, that a shield law of the sort the Obama administration now supports would have protected the AP’s phone records.

“Frankly, I don’t mean to make this sound political, I really don’t, but I think President Obama is trying to have it both ways,” says Ms. Kirtley, former executive director of the Reporters Committee for Freedom of the Press.

“He wants to suggest to the press and to the public that he’s concerned about the government being perceived as overreaching when it’s pursuing journalists’ phone records and looking at their news-gathering techniques,” she adds. “On the other hand, he certainly doesn’t want to suggest he’s about to go soft on national security.”