Erik Wemple:
A single passage in the government’saffidavit in the James Rosen case has captivated Washington for nearly two weeks. The affidavit sought a search warrant to snoop in the personal Gmail account of Rosen, a Fox News reporter who had secured critical national security information in 2009. Here’s the explosive wording:
“[T]here is probable cause to believe that the Reporter [Rosen] has committed or is committing a violation of section 739(d), as an aider and abettor and/or co-conspirator…”
Wow, responded the media. Fox News chief Roger Ailes, in a memo to his staff, used the “C” word to describe what the passage seemed to be suggesting: “We reject the government’s efforts to criminalize the pursuit of investigative journalism and falsely characterize a Fox News reporter to a Federal judge as a “co-conspirator” in a crime.” (Bolded text added). Many others deployed similar language.
A small backlash has whipped up to rebut the notion that the Justice Department, with this “co-conspirator” language, was in fact seeking to criminalize journalism. The Post’s Walter Pincus, for instance, pushes back with these thoughts from a recent column:
While getting my degree at Georgetown Law School and later when I was subpoenaed in the probe of the leak of the identity of CIA covert officer Valerie Plame Wilson, it became clear that reporters could be labeled co-conspirators, aiders and abettors or accessories in criminal leak cases.
To be so named in an application for a search warrant when the government wants to get a journalist’s or any citizen’s e-mails or phone records does not mean prosecution. A journalist, however, is not very different from other citizens in the eyes of the law when it comes to the government seeking records from a third-party provider such as Google or a phone company.
Applying labels such as co-conspirator provides a probable cause for the judge to grant the warrant, as in the Rosen case. If Rosen offered money or some other reward, it might be a different case. I believe the First Amendment covers the right to publish information, but it does not grant blanket immunity for how that information is gathered.
George Washington University law professor Orin Kerr attempted to tamp down the “war on journalism” outrage with a tract showing that the Justice Department, in using the aider/abettor/co-conspirator labels, was merely complying with the provisions of the Privacy Protection Act.
All this talk of co-conspirators comes in the stream of some fascinating legal history. Check it out: Back in April 1971, there was unrest at Stanford University Hospital. Demonstrators had barged into the administrative offices and established an occupation. The cops were called in, and in the ensuing clash nine officers were injured.
As a summary of the case notes, “The officers themselves were able to identify only two of their assailants, but one of them did see at least one person photographing the assault…”
A photographer for the student newspaper Stanford Daily had indeed snapped some photographs helpful to the officers. So the local prosecutor sought and obtained a warrant to search the newspaper’s offices for “negatives, film, and pictures showing the events and occurrences at the hospital.” And here’s a key fact: The affidavit for the warrant “contained no allegation or indication that members of the Daily staff were in any way involved in unlawful acts at the hospital…”
Speaking of “curbing liberty”: Remember how the pro-Gun Control pooh-pooh the 2nd-Amendment right protests that ‘the registration of firearms is the first step to confiscation”? Well, California has proved the that the Gun-Rights side was correct:
CA Democrats Expand Background Checks, Gun Confiscations
It’s not just the Press and 1st Amendment that is under attack.
Ditto
hi,
I believe they made it hard on GEORGE ZIMMERMAN and a long wait to this ending
because he happen to be at their time of showing their bullshit
and prove that he won’t get out of it so easy.
an innocent man who shoot to save his life,
what a bunch of snakes, do they check on the BLACKS CRIMINALS
AND KILLER OF THEIR OWN BLACK YOUTHS,
instead of going after an innocent man who took the task to help this community having break in
randomly, on and on, unable to defend themselves,
bye