OAS » IACHR » Special Rapporteurship for Freedom of Expression » United States

Freedom of Expression

United States

            Judicial Actions

104.     On October 10, 2003, Judge Thomas Penfield Jackson, of the Federal District Court for the District of Columbia, ordered reporters Jeff Gerth and James Risen (New York Times), Robert Drogin (Los Angeles Times), H. Josef Hebert (The Associated Press) and Pierre Thomas (CNN, now moved to ABC) to disclose the confidential sources they used for writing their articles about Dr. Wen Ho Lee, former scientist at the weapons laboratory in Los Alamos, New Mexico.  The judge also ordered the journalists to provide Dr. Lee's lawyers with notes and other materials they had gathered when preparing the articles, ruling that the First Amendment protections to journalists against government intervention were outweighed in this case by the need of Dr. Lee's lawyers to provide evidence of government leaks.  At the time of this writing, the New York Times and the Associated Press were planning to appeal and the other news media were studying the judge's decision.[1]  The Special Rapporteur highlights Principle 8 of the Declaration of Principles on Freedom of Expression, which states that "Every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential."

 

105.     On May 27, 2003, the U.S. Supreme Court denied a request to review the decision of the Third Circuit Court of Appeals in the case of North Jersey Media Group, Inc. v. Ashcroft.[2]  The Third Circuit had ruled that there was no constitutional right of public access to deportation hearings.  This ruling conflicted with a ruling issued by the Sixth Circuit Court of Appeals in the similar case of Detroit Free Press v. Ashcroft, in which the court found that such a right did exist.  The Supreme Court did not disclose the reasons for declining the request for review.[3]

 

106.     In June 2003, the U.S. Court of Appeals for the D.C. Circuit ruled in the case of Center for National Security Studies v. Department of Justice,[4] finding that the government can withhold on national security grounds information about more than 1,100 non-U.S. citizens detained since September 11.[5]  The decision overruled, in part, a lower court decision ordering some of the information requested to be made public.  A request for review is currently pending before the Supreme Court.

 

            Legislation

 

107.     In June 2003, the Federal Communications Commission (FCC) approved reforms to its rules, including a relaxation of rules regarding cross-ownership of newspapers and television or radio stations in the same city, a relaxation of national limits on TV ownership, and a relaxation of rules regarding multiple ownership of local TV stations.[6]  Many public officials, civil society groups and individual members of civil society have expressed concern about these changes, believing that they will increase concentration of media ownership and decrease the diversity of viewpoints expressed in the media.  A coalition of media watchdog groups filed a case in federal court challenging the rules and on September 3, the day before the rules were scheduled to take effect, the Third U.S. Circuit Court of Appeals in Philadelphia issued an emergency stay pending a full review.[7]  The hearing in this case is currently scheduled for February 2004.[8]  Both the Senate and the House of Representatives have also been considering legislative proposals that would overturn the new rules. [9]  Both houses of Congress included riders in their appropriations bills that allot no funding for the FCC for the implementation of the change in the national ownership limits.[10]  However, in December, these provisions were deleted during the final congressional negotiations.[11]

 

            Access to Information

 

108.     In March 2003, the Pentagon issued a directive to U.S.military bases prohibiting arrival ceremonies and media coverage of deceased military personnel being returned to the U.S.  The policy previously existed, but was not strongly enforced until after the March directive.  Many critics have alleged that the reason for the current enforcement of the policy is to prevent negative public opinion regarding U.S.military activities.[12]

 

109.     In 2003, the U.S.government continued to restrict journalists from obtaining and publishing information about the identities and the situation of prisoners held at the U.S. base in Guantanamo, Cuba. Journalists visiting the base are not permitted to communicate with or identify prisoners, take pictures based upon which detainees can be identified, record their remarks or cover the prisoners' transfer between different parts of the base.  Authorities have taken measures to ensure that such information is not obtained.  For example, on June 20, 2003, equipment was taken from a BBC crew working for "Panorama", a current affairs TV program.  Recordings in which prisoners could be heard shouting questions to the journalists visiting Camp Deltadetention center in Guantanamo were erased.  Vivian White, a reporter who responded to the prisoners' questions about them being journalists, was confined to a building at some distance from the camp.  Journalists have also been prohibited from asking officials questions about ongoing and/or future investigations or operations at Guantanamo.  Journalists were warned that those who violated this policy could have their access to the base restricted, be removed from the base and/or have their Department of Defense press credentials revoked.  In mid-October, the policy was modified; reporters are no longer banned from asking these questions, however, authorities have an official policy not to answer them.[13]

 

            Positive Developments

 

110.     Jonathan Walters and Robert Steiner, two former firefighters, and Joseph Locurto, a former New York City Police officer, were fired by request of Rudolph Giuliani   after they wore blackface in a 1998 Labor Day parade in Broad Channel, Queens (Giuliani was Mayor at the time).  In June 2003, Judge John E. Sprizzo of Federal District Court concluded that their actions, no matter how inappropriate, "constituted speech on a matter of public concern."  Giuliani testified that he had called for their firing because he feared civil unrest. Judge Sprizzo found that they were fired "in response to the content of their speech, and for reasons of public perception and the political impact expected to flow from it."  The Judge asked the parties to file briefs on whether punitive damages would be appropriate in the case (unlike compensatory damages, punitive damages are intended to punish wrongdoing and deter misconduct).  Walters, Steiner, and Locurto's lawyers are seeking punitive damages only against Mr. Giuliani, not his codefendants, Howard Safir  (former police commissioner) and Thomas Von Essen (former fire commissioner).[14]

 

111.     On August 7, 2003, a Federal Judge in Manhattan (Charles S. Haight Jr., of Federal District Court) criticized police officials for the way they interrogated demonstrators against the war in Iraq in early 2003, and made it clear that civil liberties lawyers could seek to hold the city in contempt of court in the future if the police violate people's rights.  The Judge's comments were expressed after evidence that the police had interrogated the demonstrators about their view on the war, had asked them if they hated Bush, if they had traveled to Africa or to the Middle East, and what might be different if Gore were president. Haight said that these events revealed a "display of operational ignorance on the part of the NYPD's highest officials."  In February, Haight modified a longstanding court order that had restricted NYPD's ability to supervise political groups, after police officials had said they needed more flexibility in investigating terrorism.  On August 7, the Judge did not impose new restrictions on the police, nor did he decide whether or not the interrogations had violated the protesters' constitutional rights.  However, he said he would incorporate the recently eased rules into a judicial decree that would make it clear that lawyers could hold the city in contempt if they believed that a violation of the rules also violated an individual's constitutional rights.[15]

 

            Other

 

112.     In March of 2003, United States attorney J. Strom Thurmond, Jr. brought federal charges against Brett Bursey under a seldom-used statute that allows the Secret Service to restrict access to areas the president is visiting.  The charges stemmed from Mr. Bursey's attendance at a speech given by President Bush at the Columbia Metropolitan Airport in Columbia, South Carolina on October 24, 2002, where he carried a sign protesting the Iraqwar.  Mr. Bursey was in a crowd of thousands of people who had gathered to welcome the president.  Police singled out Mr. Bursey because of the content of his sign and told him he had to go to the designated protest area, located about a half-mile from where the speech was to be given.  When he did not obey, he was arrested for trespassing.  After the local trespassing charges were dropped, the U.S.attorney filed the federal charges, which are still pending.  If convicted, Mr. Bursey faces a maximum $5,000 fine and up to six months in prison.[16]  In June 2003, a group of eleven members of the U.S. House of Representatives wrote a letter to Attorney General John Ashcroft asking him to drop the case and questioning the practice of establishing "free speech zones" for protesters at presidential appearances.[17]

 

113.     In September 2003, the American Civil Liberties Union filed a lawsuit on behalf of four progressive political groups against the Bush Administration, charging that the Secret Service is systematically keeping protesters away from President Bush's public appearances.  In many cases, critics have been restricted in "protest zones" during the U.S.president's appearances.  These protest zones are often located far from where the president appears and in places where they are not likely to be seen and heard by the president or many members of the public.[18]

 

114.     Throughout 2003, the Special Rapporteur received information complaining of the actions of the U.S.military towards journalists in war zones.  Critics allege that U.S. troops have failed to take adequate precautions to prevent injuries to or death of journalists and that troops have harassed journalists in the course of their work.[19]  The Special Rapporteur is concerned that these actions may impede the flow of information about U.S.military activities to the public.

 

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