Let's use some boxing terminology track a “match” pitting the needs of national security against the public's “right to know.“
Round One: Score it for the Obama administration, which came out of the corner fighting leaks and bringing more prosecutions under the Espionage Act than ever before.
Round Two: Government takes this one, on a mixed card. Just as a shield law long-sought by many journalists to protect the reporter-source relationship was nearing a final vote in the U.S. Senate in 2009, a haymaker gets thrown: Wikileaks released hundreds of thousands of memos and battlefield briefs.
Round Three: in May 2013, The Associated Press threw some serious punches when it's revealed that the Justice Department secretly obtained months of phone records for as many as 20 AP reporters at multiple AP offices while investigating leaks. AP chief Gary Pruitt called the seizures “unconstitutional” and said already some sources are backing away from his reporters. DOJ takes it on the chin.
Later “rounds” are harder to score.
Round Four: In 2010, Pvt. Bradley Manning is arrested on charges of giving more than 700,000 State Department cables, terrorism detainee assessments, combat logs and videos to WikiLeaks. Manning is convicted on many counts but not the most serious, aiding the enemy. Split round.
Round Five: Former contract National Se analyst Edward Snowden discloses a massive National Security Agency program that provides access to the “meta-data” of millions on American phone calls and e-mail. Snowden gets a year of asylum in Russia.
Round Six: A search warrant request named Fox News's James Rosen as “an aider and abettor and/or co-conspirator” for receiving a 2009 leak. President Obama backpedals and declares that he supports the First Amendment, and decries any attempt to “criminalize” news reporting. Obama also announces support for a revived federal shield law.
Round Seven: Jabs and roundhouse swings at the government over the AP records seizure and the Rosen affair produce an invitation in mid-June from Attorney General Eric Holder to major news outlets to discuss long-standing rules within the Justice Department governing attempts to get journalists' files or other records. The meeting is off-the-record, so some journalists do not attend.
Round Eight: One for the government. On July 19, the Fourth U.S. Circuit Court of Appeals ruled that New York Times reporter James Risen must give take the stand at the trial of a former CIA agent being prosecuted for leaking of state secrets. The court said the First Amendment does not protects a reporter from being compelled to testify in criminal proceedings.
Round Nine: As July ends, a flurry of news reports suggest the Manning convictions — combined with other zealous efforts by the Department of Justice — will “chill” whistleblowers and scare them away from talking with journalists.
Round Ten: In the U.S. House, the NSA data surveillance program survived a surprisingly tight vote, 217-205, At the same time, more documents and allegations surface from Snowden, supporting the claim that even low-level NSA analysts can gain access to the content of — not just data surrounding — individual phone conversations and e-mails.
Even with all that, we're just getting through the early sparring in this Constitutional rumble.
Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of its First Amendment Center. Email him at firstname.lastname@example.org.