The Illusion of Freedom of the Press

In chapter three of "Mass Media and American Politics" by Doris A. Graber and Johanna Dunaway, lawful protection for freedom of the press is discussed in great detail. The first Amendment to the Constitution and other legislation such as the Freedom of Information Act intend to provide news media some legal protection allowing them to publish information to the public. Unfortunately, these provisions fall short of allowing the news media to publish political information in the entirety. There is still a large amount of information censored by government that is not publishable by the media. These types of information typically consist of classified state secrets withheld for security reasons, information that may embarrass political officials, or information generated within closed meetings usually of the previous two types. These forms of classified information are usually but not always keep out of the hands of the news media.

It is not uncommon however for classified information to be leaked to the news media. There are a number of situations when the government intentionally provides classified information to the press that it wants publicly presented but for one reason or another but does not desire to release the information through official government venues. Then there are the occasions when potentially damaging classified information is released to the press by private individuals possibly for reasons of conscience. This form of information dissemination is typically illegal and can carry very harsh consequences if the source of information is identified and apprehended. Some high profile examples of this type of classified information leak would be the government documents called the "Pentagon Papers" released by Daniel Ellsberg in the 70s and more recently the documents leaked by Edward Snowden. In both cases the government indicted these whistleblowers on espionage charges among others.

Given the high risks involved in the less legal form of classified information dissemination, a reporter to must protect the confidentiality of their sources if they expect to be trusted in the face of the significant consequences of whistleblowing. However, no legislation involved in providing "freedom of the press" protects a reporter's right to keep a source confidential. The Fifth Amendment to the Constitution provides the right to decline to testify in fear of self-incrimination, there is no legislation however providing the right to decline to testify in fear of source incrimination including the First Amendment. Most cases of such magnitude are heard in federal courts eventually, unfortunately more often than not the courts decide that the reporter does not have the right to refuse to testify and orders them to do so or face imprisonment for contempt of court. This is the legal situation James Risen finds himself in now; he has been order by a U. S. Court of Appeals to testify on the identity of a confidential source used in writing a book. Mr. Risen has stated that he will not divulge the identity of his source even if faced with imprisonment. If the U. S. Supreme Court, who has thus far declined to hear the case, does not reverse the ruling of the Court of Appeals; Mr. Risen may be force to prove his resolve and remain in contempt of court. Though the cost of being imprisoned for another person's crime may be high, the principle James Risen is embracing is believed by many to be considerable more costly to replace if left to decay.