The Magazine

A Privileged Press?

Why James Risen may be headed for jail.

Sep 1, 2014, Vol. 19, No. 47 • By GABRIEL SCHOENFELD
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The Court acted as it did in Branzburg for a number of reasons, one of them being to protect the longstanding American tradition of defining the press in a maximally encompassing way. Thanks to the First Amendment, anyone in our country who conveys information or opinion can be considered a member of the press. The Court did not wish the federal government to get embroiled in determining who would and would not be eligible for a journalistic exemption: “Sooner or later,” Justice Byron White wrote memorably, “it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.”

Of course, by any definition, James Risen is a journalist. He has published hundreds of stories in our nation’s leading newspaper and won a Pulitzer Prize. But he is also a particular kind of journalist. In grasping what is at issue in his refusal to testify, it is worth gaining an understanding of precisely what kind of newsman he is.

The New York Times prides itself on maintaining the highest professional standards. To help its reporters and editors keep themselves in good standing, it has published a code of conduct under the title Ethical Journalism: A Handbook of Values and Practices for the News and Editorial Departments. The guidebook is designed to advance the Times’s “essential interest in protecting the integrity of the newspaper.” It proclaims that the newspaper’s “greatest strength is [its] authority and reputation” and “we must do nothing that would undermine or dilute it and everything possible to enhance it.”

To pursue those ends, the handbook promulgates a number of regulations to safeguard the newspaper’s “irreplaceable good name.” It enumerates various kinds of infractions, including such obvious no-nos as using inside information to purchase stocks or establishing romantic relations with news sources. Some of the most serious strictures involve political activism, which for journalists must be disallowed in conformity with the overarching obligation to “protect the impartiality and neutrality of the Times.”

The handbook thus instructs that “no one”​—​not just reporters and editors, but also photographers, graphic editors, art directors, and everyone else whose work shapes the content of the paper​—​“may do anything that damages the Times’s reputation for strict neutrality in reporting on politics and government.” One cannot wear a campaign button or allow one’s spouse to put a political bumper sticker on the family car. When appearing on television and radio shows as guest commentators, reporters “should avoid expressing views that go beyond what they would be allowed to say in the paper.” Op-ed columnists and editorial writers are given more leeway “because their business is expressing opinions,” but for reporters “these restrictions protect the heart of our mission as journalists.”

That is the theory, at least. As Risen’s case illustrates, practice is often something else. Risen has built his reportorial career out of revealing the U.S. government’s most sensitive intelligence secrets. But he has a separate yet related career as a left-wing polemicist. His editors may tone him down in the pages of the New York Times, but in the pages of his own publications, like State of War, he does not hew to the newspaper’s demand for “strict neutrality in reporting on politics and government.” Much of that book is a diatribe against the Bush administration for embarking on what he calls a “radical departure from the centrist traditions of U.S. foreign policy.”

The book opens with the assertion that President Bush, under the influence of “a cadre of neoconservative ideologues,” drifted to right-wing extremes. He “allowed radical decisions to take effect rapidly with minimal review.” His Middle East policy amounted to nothing more than an “enormous gamble” with American interests “and with the lives of American soldiers.” The administration repeatedly engaged in “outrageous operations.” Moderate State Department officials were “stunned” time and again by the audacity of the “hardliners.” And so on and so forth.

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