Remember that part of the constitution that says, “freedom of speech shall not be abridged unless you go straight through a red flag and, you know, put out stuff that hurts the country”?
Yeah, me neither.
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Sure, I can imagine a situation where it might be right to prosecute a journalist for something that’s printed. I have a pretty fevered imagination.
A standard at least as strict as Brandenburg v. Ohio would have to apply. ‘Embarrassing the administration’ doesn’t come even close to clearing that bar. In fact, no court case in the US in the last fifty years has even probed the outer limit of speech protected under Brandenburg. So one has to stretch the imagination awfully far to imagine such a thing.
As far as ‘hurt the country’ goes: there has to be an overt act (and testimony of two witnesses to it). Brandenburg would cover only offences like ‘incitement to riot’, and ‘treason’ is a much higher bar to clear.
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In the Gulf War, we sometimes had reporters with us. Although we did not brief them into classified meetings, they were able to observe tactics and preparations for combat. They often had a pretty good idea of the location and objectives of planned operations. Publishing that information would have “hurt the country” by compromising our operations and lives.
I can see where, as a last resort, a journalist who deliberately compromises a military operation could be prosecuted. Of course, the reporters and their employers are required to sign an agreement to not reveal such information.
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Not for nothing, but THIS is why giving the state more power to regulate unpopular and unpleasant speech is a really, really bad idea.
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With such an open ended hypothetical question, I too could conceive of situations where a journalist should be prosecuted. Like Steve Bannon and Alex Jones engaged in yellow journalism that results in deaths, for an example.
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Fine. Use “harming the country” as your standard. But anything short of publishing the actual, verified nuclear codes doesn’t actually harm the country.
And I think you could argue that falls under a different statute.
Saying mean but true things about the administration, doesn’t qualify.
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Waiting for the inevitable realization and panic that a Democrat could apply this to FoxNews, Breitbart, and InfoWars…
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points at @Mister44’s reply:
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Writers for National Enquirer spring to mind. I’m sure that if Pecker hadn’t gotten a great deal out of Mueller, any further investigation would reveal prosecutable behavior.
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There’s the rub though, right? They probably agree under threat of very serious penalty. Further, the military is under no obligation to bring around a press crew if they are afraid that info will leak.
And there’s no need to bend over backwards to explain a situation where this guy’s words make sense. He’s before a senate committee, he should be able to lay out a plausible answer to such a softball question. He could have easily said, “if they break the law, yes.”
The justice department has jailed journalists for contempt of court for refusing to reveal sources. It’s not a good look.
Side note: didn’t Gerardo Rivera reveal troop movements on live TV during Gulf War II?
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I know you said “yellow” but are these really journalists? Given the internet, and that anyone can have a platform for publishing ‘news’, let’s hope the William Barrs of this world realise such an approach is a double-edged sword, and fear it, and back off. Otherwise, it’s more terrifying than some have noted merely re journalism. This would head towards Saudi / Egyptian / Turkish levels of censorship and suppression of any dissent.
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I personally am terrified that one day our Free Press might start a trade war with China and then shut down the government. Sure, it sounds absurd, but you never know what that rascally Free Press is up to.
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“No true Scottsman Fallacy”. What constitutes a journalist? Both report on news. Many people with a blog and an over active twitter account consider themselves journalists. Should they be afforded the same protections as “real” journalists? After all, citizen journalism IS a thing.
Though I used these two as an example because they both inject a healthy dose of bullshit with their news. But the main stream news networks also are full of half truths, speculation, and even lies (albeit, not nearly as bad as the pundit based news sites.) Truth isn’t black and white, neither is the reporting of facts. And let us not forget where the term comes from and how in the past mainstream news papers helped get us into all sorts of shenanigans (Remember the Maine, anyone?)
So these are examples where I think one COULD conceive of a situation where a journalist could be charged with something. Now, what does this mean in the context of the story? Does this mean that Barr too could conceive of unlikely but possible scenarios? Or is he flagging his intent on abusing power to go after the press? It isn’t really possible to say based on this one article, IMO.
Though anyone aghast at this idea that it is even possible, I point back to the people in the past wary of give the government the powers or approval to use such powers.
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I can conceive of a situation in which a fascist asshole should not be made attorney general. This one, in fact.
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You had to include an /s for me too, sorry and thanks for clarifying.
We live in an age where one party accuses everyone of things that they do in order to deflect attention from themselves and make everyone say “well both sides do it”
So yeah, you could have been serious.
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Suppose your division had been taken in secret to Ghana to kill some people. The president had decided there was a threat there and you were to take care of it, he’ll brief congress in a few days, nobody else even needs to know you’re there.
Somehow the reporter manages to tag along and decides to report to the people that the president in secret sent some soldiers into a nation we were not at war with to do some soldiers things.
Reporting those facts is absolutely hurting the country.
Or suppose some knucklehead leaks some information to an organization that the death of a Reuters reporter was a friendly fire incident, instead of terrorism or crossfire, and that despite months of cover-up the military knew it was a reporter. (You could see the camera in the video. Although the pilot who shot can be forgiven for the mistake, in hindsight the thing is clear). So you report the facts.
That is absolutely harming the country.
The first one is hypothetical, I mean we definitely do those things but nobody reports it immediately. The second one definitely happened though, and that was the government’s response: you are hurting the country by reporting facts.
It has been the position of many AG’s that reporters doing their jobs is hurting the country and they should be prosecuted for it…the terrifying new thing is the modern insistence that reporting fact makes you fake news, and bad people.
Also…what is a reporter? What is reporting? How come how come being part of a “well regulated militia” has been interpreted as “almost anybody, almost any time” but the amendment with no such restriction has been interpreted as “only if practicing this right you have consistently been found to have commercial value to a small and specially designated group of businesses”
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Fair enough in a general sense but if you know me on the BBS you’d know I am not a supporter or advocate for Nostradumbass and his cronies.
Arrest a journalist for driving drunk. Sure.
Arrest a journalist for writing a story condemning this asshole. Nope. Give them a god damn medal IMO.
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A) This is, of course, bad and dangerous and alarming. The Trump administration abusing the legal system to silence critics is not at all implausible.
B) This is not at all an unprecedented thing for the US government to do.
Etc.
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With us, reporting about what had happened was never an issue. The real concern was that our specific future mission plans might be compromised. That was a big deal not just for reporters, but for each of us when communicating with loved ones or others. Your first example is referring to reporting that soldiers were “sent” unlawfully. That implies reporting a past event, which is rarely a problem. If the reporter leaked the mission plans beforehand, and we were ambushed, I would have a problem with the reporter. We spent a lot of time in OCS learning about the difference between lawful orders and unlawful ones. It can be complicated.
As for the other example, I watched that tape a bunch of times as well. I think it should be used in officer training. The “situations I can conceive of” where a reporter could be prosecuted are not those sorts of things. I am thinking more of a reporter publishing a story in May, 1944 that allied troops are planning an amphibious assault between Cherbourg and Le Havre the next month, leading Rommel to stage more forces there to repel the invasion.
But overall,
Was the best answer.
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So they still wouldn’t be prosecuted for writing about the secret things. They’d be prosecuted for violating their agreement. That’s actually a big difference.
You still wouldn’t be able to prosecute a journalist who did not sign the agreement (well, technically you could, but you can bet it would be challenged in court.)
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