The U.S. media muddle

Print edition : June 14, 2013

Gary Pruitt, president and CEO of Associated Press. He has described the seizure of the phone records of the new agency's reporters and editors as "unconstitutional". Photo: CHRIS USHER/AP

Eric Holder, U.S. Attorney General. There have already been six prosecutions of leaks under his Attorney Generalship. Photo: J. Scott Applewhite/AP

A SAMPLING of the news media in the United States over the past two weeks throws up a strange mix of real and surreal challenges to the freedom of the press in what is supposedly a mature media market. The surreal is right in your face—a self-anointed radio show host, Pete Santilli, who claims to be a “recovering lifelong Reagan Republican who recently voted for Obama because I hoped for revolutionary change” but whom most media accounts place in the lunatic fringe on the Right, went ballistic about former Secretary of State and First Lady Hillary Clinton, saying (hold your breath), “I want to shoot her right in the vagina and I don’t want her to die right away; I want her to feel the pain and I want to look her in the eyes and I want to say, on behalf of all Americans that you’ve killed, on behalf of the Navy SEALS, the families of Navy SEAL Team Six who were involved in the fake hunt down of this Osama, Osama bin Laden thing, that whole fake scenario, because these Navy SEALS know the truth, they killed them all. On behalf of all those people, I’m supporting our troops by saying we need to try, convict and shoot Hillary Clinton in the vagina.” Obama himself was not to be spared either: “Barack Obama needs to be tried, convicted, and shot for crimes against the United States of America…. And if anybody has a problem with that, then you are an enemy of our state.”

It’s the kind of rant that evokes the stand-off between individual libertinism of an extreme licentious kind and state-imposed order that Antony Burgess’ A Clockwork Orange (and Stanley Kubrick’s film of it) explores, but finds refuge, in the U.S. context, behind the First Amendment. Indignant responses to this misbegotten mediaspeak included calls to interpret it as inciting violence to make it actionable. But as a piece of journalism per se it is, however uncivil and abhorrent, apparently beyond the reach of the law. Santilli clearly takes himself very seriously and is not averse to syndicating his show, now on his website, nationally if only the AM or FM stations regulated by the Federal Communications Commission (FCC) can cope with his “truth and honesty”.

From that surreal, postmodernist, predicament which the concept of freewheeling freedom of the press pretends to, and which sets up the First Amendment at some unassailable height, it is a nosedive into the real and substantive world of journalism where over a hundred journalists of the Associate Press (AP) discover that their phone records have been secretly subpoenaed by the Justice Department as part of an investigation by the government into the source of the leak into an AP story of May last year about the CIA thwarting a plot by a satellite organisation of Al Qaeda in Yemen to bomb an airliner bound for the U.S. The move has been roundly criticised by the print, online and broadcast media. One discerns here what looks like the beginnings of a media-swell against the Obama administration’s prosecutorial exertions against the time-honoured journalistic privilege of confidentiality of source.

“What, besides intimidation,” The New York Times demanded to know in its editorial of May 15, “is achieved by searching phone records of respected journalists?” It went on to dub the move “a fishing expedition for sources and an effort to frighten off whistle-blowers”. In a letter of protest (signed by over 50 news media organisations) to the Attorney General, Eric Holder, the Reporters’ Committee for Freedom of the Press said “the nation’s news media were stunned” by the scope of the action which “calls into question the very integrity of the Department of Justice policies towards the press”, and demonstrates “that a strong federal shield law is needed to protect reporters and their newsgathering materials in a court of law”.

President Obama straightaway conceded that a “new media shield Bill” was in order but was hardly contrite about the action taken by the Justice Department because, as he saw it, given the 60,000 U.S. troops in Afghanistan and U.S. intelligence deployment around the world, “part of my job is protecting what they do, while still accommodating for the need for the public to be informed”. CNN anchor and Chief Washington Correspondent Jake Tapper shot right back saying “that’s what every President says. Every President, whether it’s Nixon with the Pentagon Papers or George W. Bush with the NSA wiretapping story, every President exerts ‘I am doing this to keep you safe.’” Tapper was at pains to dissociate such encroachment into the freedom of the press in the name of national security from the bar of public opinion or approbation because “it’s not enough of an answer in and of itself. That’s why there is congressional oversight of the executive branch. It’s not enough just to say we’re doing it to keep you safe, because the moment the American people cede that territory, then Presidents can do whatever they want.” Obama’s is, according to him, “a very aggressive administration when it comes to squashing freedom of the press”.

That is a reputation that is beginning to stick. There have already been six prosecutions of leaks under Eric Holder’s Attorney Generalship and a growing recourse to the Espionage Act of First World War vintage whose application to ferret out journalistic sources is, to begin with, a bit of a stretch. The balancing act attempted by the White House in pitting the need, as the President sees it, of “the press to be able to be unfettered in its pursuit of investigative journalism” against that, on the other hand, “for secret and classified information to remain secret and classified in order to protect our national security interests” has not cut much ice with the affected parties. The President and CEO of AP, Gary Pruitt, has declared the seizure of the phone records of the news agency’s reporters and editors “unconstitutional” and warned that they would have a chilling effect on those wanting to share information with journalists. While he has not ruled out suing the Justice Department, media commentators seem agreed that the current legal and political climate does not hold out much hope for any aggressive assertion of journalistic rights.

Zero tolerance

The official mood of zero tolerance for intelligence leaks, which the same officialdom determines in its undisclosed wisdom to be sensitive or not, in effect erects a firewall, a “national security” cordon, around journalistic practice, scaring off conscientious or morally outraged informants and putting the Whistleblower Protection Act of 1989 on the back burner. While this has been in the air for a while now—the state of emergency post 9/11 has not been called off or worn off—what is special about the latest development involving AP is that it contravenes the Justice Department’s own guidelines issued 30 years back restricting the exercise of subpoenas of phone records of journalists; guidelines which had become a settled convention where, as the NYT editorial put it, “the media and the government have used a well-honed system to balance the government’s need to pursue criminals or national security breaches with the media’s constitutional right to inform the public”.

It doesn’t help the press in this situation that it additionally has the onus of convincing the public that such abridgement, at one remove, of journalistic access will redound on the nature of democracy itself; or of persuading the political class that it is dangerous to squeeze the channels of the fourth estate which, after all, provide and equip it with the material to formulate the public agenda and discourse at any given time. Security in peril is an alarm signifier before which all else must yield.

The mainstream influential media are also caught in a bind of their own making—where to draw the line on leaks. This, in turn, makes it difficult to rally support or consensus on where to draw the line on governmental action against leaks. A maximalist position would have been to question, or at least thoroughly discuss the pros and cons of, the incarceration and action against Bradley Manning, the source of WikiLeaks, who is a virtual looming presence in the current contention about leaks. But on Manning, the U.S. media proved a pushover. And now, when it comes to sundry other leaks with a possible, or debatable, security angle, they find themselves ducking and dodging and crying foul as the establishment throws the book and anything else it can find in its anti-disclosure arsenal at them.

The action against AP is also historically significant. The news agency has a hoary lineage as an institution which was constitutive of the modern era of the fourth estate in the U.S. When, in May 1844, Samuel Morse sent the first telegraphic message over the wire experimentally strung between Washington and Baltimore initiating the new technology of mass communication, the question uppermost in most minds was where the content to fill this newly created capacity would come from. It was a classic instance of networking preceding programming, which is how, as we know from Raymond Williams, mass media technology evolved and proliferated.

AP, set up in 1846, was a business response to that felt need and provided a fillip to content generation as a wire service. It has the stature and gravitas to epitomise the fourth estate which plays a morally, if not constitutionally, sanctioned role in the scheme of checks and balances that underwrites the separation of powers in the U.S. Constitution. To secretly and sweepingly search thousands of telephone conversations by over a hundred journalists of such a media institution is also to stigmatise it as a kind of Trojan horse concealing information, purportedly inimical to the nation, and its sources. To Gary Pruitt, the message from the government is clear: “If you talk to the press, we’re going to go after you”, the larger implication being that “the people of the United States will only know what the government wants them to know, and that’s not what the framers of the Constitution had in mind when they wrote the First Amendment”.

Indian context

The takeaway from all this for India which has its share of media-baiting by the government, particularly social media through indiscriminate exercise of the infamous Article 66A of the Information Technology Act, is only too obvious, particularly because the U.S. media has been the dominant professional and market model.

As we are on the threshold of legislation (once Parliament gets to function, that is, and has the time to take it up) to protect whistle-blowers, the ongoing U.S. experience must provide insights into what such a law can and cannot deliver or guarantee. But then there is a world of difference in what protection of a whistle-blower means in our two respective contexts.

In the U.S., in the best of times—and these are not—it would mean a sense of immunity from prosecution for disclosure of private information in the public interest. In India, as over 20 tragic examples to date remind us, it perhaps still and primarily means protecting—if an Act can—the lives of those who dare to blow the whistle.