In early June 2021, the Biden Justice Department issued a new order prohibiting government officials from spying on or obtaining warrants to seize the records of journalists to identify sources who might be providing leaked classified information. White House press secretary Jen Psaski released a statement that "the issuing of subpoenas for the records of reporters in leak investigations is not consistent with the President’s policy direction to the Department." The Justice Department separately told reporters: "in a change to its longstanding practice, [the DOJ] will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs.” A few weeks later, the DOJ made the ban on seizing records official.
If executed consistently, those orders may put an end to the alarming pattern of such abuses that numerous previous administrations had authorized. For example, in May 2013, Barack Obama’s Justice Department seized the records of phone lines that Associated Press employees used. AP confirmed that the records were from personal home and cell phones of reporters and editors, as well as phones that AP used in the press quarters of the House of Representatives. In addition to the dragnet raid against the Associated Press, Obama administration officials conducted electronic surveillance of both New York Times reporter James Risen and Fox News correspondent James Rosen in an effort to identify their sources for articles that had discomfited the administration. Prosecutors even named Rosen as an "unindicted co-conspirator" in an espionage case brought against his alleged source. Similarly, the administration asserted that it had the right to prosecute Risen, although it chose not to take that step. There also was strong circumstantial evidence that Obama officials conducted (possibly illegal) electronic surveillance of CBS News correspondent Sharyl Attkisson because of her investigations into administration policy blunders and attempted cover ups.
The Trump administration exhibited the same fondness of its predecessor for spying on targeted journalists. In May and June, 2021, news stories broke that the Trump Justice Department had secretly obtained the phone records of multiple reporters working for the New York Times, the Washington Post, and CNN – accounts that the Biden administration subsequently confirmed. The surveillance effort continued for nearly four months in 2017. The principal impetus for the move apparently were articles using leaked information from the FBI and intelligence agencies relevant to the Russia collusion story. Given Trump’s rage about the collusion, it was entirely credible that he had launched such an effort against journalists he believed were undermining his presidency. The nasty ramifications of conducting such surveillance of "unfriendly" reporters, though, constituted a serious threat to press freedoms.
Leading First Amendment advocates praised the Biden administration’s move. Freedom of the Press Foundation executive director Trevor Timm stated: "This announcement is a potential sea change for press freedom rights in the United States. Over the past decade – spanning multiple administrations run by both parties – the Justice Department has increasingly spied on reporters doing their job, casting a chill over investigative reporting and putting countless whistleblowers at risk."
That appears to be the "good" component of Joe Biden’s policy regarding freedom of the press. But the DOJ order followed a multitude of disturbing reports during the administration’s early months. Perhaps the most troubling was the explosive allegation from Fox News host Tucker Carlson that the National Security Agency (NSA) had put him under surveillance. He stated that the show had heard from a "whistleblower from within the U.S. government" who informed Carlson and producers that the NSA is "monitoring our electronic communications and is planning to leak them in an attempt to take this show off the air." The NSA’s subsequent denial was a classic example of the "weasel phrasing" so common with federal law enforcement and intelligence agencies. The statement merely denied that Carlson was the "target" of any NSA surveillance – leaving a gigantic loophole to legitimize "incidental" data collection on him in the course of a "broader" investigation – say into "domestic extremism."
In addition to that episode, there were indications of other troubling practices before the June order was issued. Washington Post publisher Fred Ryan charged that "After Biden took office, the department continued to pursue subpoenas for reporters’ email logs issued to Google, which operates the New York Times’ email systems, and it obtained a gag order compelling a Times attorney to keep silent about the fact that federal authorities were seeking to seize his colleagues’ records." Those incidents illustrate the "bad" feature of Biden’s policy regarding press freedoms.
Two other policy initiatives highlight a truly "ugly" aspect. One is the administration’s continuing effort to extradite WikiLeaks founder and editor Julian Assange and prosecute him for espionage. The administration’s case even embraces the Trump Justice Department’s rationale that Assange is not a "legitimate" journalist. The potential consequences of letting the government have the power to decide who is or is not a bona fide member of the press are horrifying.
The other menacing Biden administration initiative is its attempt to entice or pressure social media platforms to expunge posts that are guilty of "misinformation" or "disinformation" – as defined by Biden administration functionaries. The White House announced that it had been flagging such offenses and forwarding the information to Facebook to exclude such material. White House Press Secretary Jen Psaki added: "You shouldn’t be banned from one platform and not others . . . for providing misinformation out there."
That effort smacks of an attempt to forge a fascistic "government-corporate partnership" to suppress dissenting views on controversial issues. It poses a potentially mortal threat to the First Amendment. The Biden Justice Department already has ordered the shutdown of dozens of foreign websites, using the justification (pretext?) of "disinformation." Biden’s new initiative takes that corrosive effort a giant step forward. Constitutional scholar Jonathan Turley notes that "the government cannot implement a censorship system under the Constitution – but it can outsource censorship functions to private companies like Facebook and Twitter. Just this week, the White House admitted it has been flagging "misinformation" for Facebook to censor."
The boilerplate response is that Facebook and other social media platforms are private businesses that have every right to control content as they see fit. But that position ignores the inherently intimidating role the government (especially the president) plays when dealing with even major corporations. Angry officials have the power to make the lives of private business owners miserable. When the government "flags" an item as disinformation and "suggests" that the media platform expunge it, that action is much more than a mere "suggestion." As one wag put it, the government "strongly suggesting" something is like Tony Soprano strongly suggesting something. A serious implied threat is always present.
The Biden administration already has amassed a mixed record on press freedoms. Unfortunately, the bad and the ugly are substantially outweighing the good.
Ted Galen Carpenter, a senior fellow at the Cato Institute, is the author of 12 books and more than 900 articles on defense, foreign policy, and civil liberties issues.
