Freedom of Expression
United States
PRINCIPLE 5 OF THE DECLARATION OF PRINCIPLES ON FREEDOM OF EXPRESSION (Prior censorship, interference, and direct or indirect pressure)
25. From August 29 to September 2, in the context of protests during the Republican National Convention in New York City, several journalists were detained by the police. Some were held for several hours, and there was confusion as to the accreditations that would be recognized as valid (some journalists had accreditation from the New York City Police, while others had been accredited by the organizers of the Republican Convention). Those detained included Moisés Saman, Newsday photographer; Jeannette Warner and Tim Kulick of Associated Press and the photographer who accompanied her; Daniel Jones, of WRDR radio; Jennifer Whitney, of the Internet news service Narco News Bulletin; Nick Gehring and Beth Rankin, unaccredited journalists with the Daily Kent Stater of Kent State University; freelance photojournalist Geoffrey O´Connor; Kelley Benjamin, of a weekly newspaper out of Tampa, Florida; and Daniel Cashin of Democracy Now.[1] The Office of the Special Rapporteur was also informed of a large number of demonstrators being detained that week. The interference that those detentions may have caused in the free flow of plural information in the context of an electoral process is of concern to the Office of the Special Rapporteur.
26. In late 2004, Iranian human rights defender and Nobel Peace Prize winner Shirin Ebadi filed suit against the Treasury Department for keeping her from publishing a book in the United States. The Department’s Office of Foreign Assets Control (OFAC) had warned some publishing houses, in late 2003 and early 2004, that they might face some type of legal consequence for editing writings from countries subject to trade sanctions (Cuba, Iran, and Sudan), but not for printing or publishing them.[2] In April 2004, the Treasury Department rectified its position, noting that the style corrections were permitted, and peer review for academic publications.[3] Finally, on December 17, the Treasury Department amended the regulations to allow the publishing houses to enter into contracts with writers from those countries so long as they are not representatives of their governments.[4]
PRINCIPLE 8 OF THE DECLARATION OF PRINCIPLES ON FREEDOM OF EXPRESSION (Right of social communicators to keep sources of information, notes, and personal and professional files confidential)
27. In the course of 2004, the Office of the Special Rapporteur received information on several journalists who were subpoenaed to court to reveal their sources of information. In some cases they were held in contempt, including criminal contempt, for keeping their sources confidential. One such case merited a pronouncement by the Office of the Special Rapporteur in a press release of December 8; it involved a journalist from television station WJAR-TV10, Jim Taricani. On March 16, 2004, Taricani was fined US$1,000 a day by District Judge Ernest C. Torres, of the United States District Court of Rhode Island, who found him in civil contempt for his refusal to reveal the name of the source who gave him a video showing an official from the mayor’s office in Providence receiving a bribe from an informant for the Federal Bureau of Investigation (FBI).[5] The tape in question was protected by an order that prohibited its broadcast as it was part of an investigation into corruption. As Taricani persisted in his refusal to reveal the source, on November 4, 2004, Judge Torres began a criminal action for the crime of obstruction of justice (criminal contempt), of which he was convicted on November 18, 2004. After this verdict, Joseph Bevilacqua, a local attorney, admitted to having provided him the FBI tape. Nonetheless, on December 9, Taricani received the verdict sentencing him to six months house arrest.
28. Another case involved journalists Tim Russert,[6] host of NBC’s news program Meet the Press, Judith Miller, of The New York Times, and Matthew Cooper, of Time magazine, who on May 21, 2004, were subpoenaed by a grand jury in the context of an investigation to determine who revealed the identity of an undercover CIA agent in 2003 to several journalists. Federal Judge Thomas F. Hogan, of the U.S. District Court for the District of Columbia, found Cooper[7] and Miller guilty of contempt, in August and October, respectively, after they refused to reveal their sources and hand over documentation. Hogan ordered their arrest until they agree to testify and for up to 18 months. Time magazine was ordered to pay a penalty of US$1,000 daily for its refusal to hand over documentation that had been sought by the prosecutors investigating the case. The judgment was appealed. On December 8, 2004, the Circuit Court of Appeals for the District of Columbia heard oral arguments. As of the writing of this report, no decision had been issued.[8]
29. In August 2004, U.S. District Court Judge Thomas Penfield Jackson held the following journalists in contempt of court: Josef Hebert of Associated Press, James Risen and Jeff Perth of The New York Times, Robert Drogan of the Los Angeles Times, and Pierre Thomas CNN. The journalists were ordered to pay US$500 daily for refusing to reveal their sources of information in relation to information concerning Wen Ho Lee,[9] a nuclear scientist who in 1999 was working at the Los Alamos National Laboratory, in New Mexico.[10]
30. A similar case involved the Associated Press, National Public Radio, and CBS, which in December received subpoenas to produce documents and testimony in the trial brought by Steven J. Hatfill against former Attorney General John Ashcroft and other public officials, for having been declared a “person of interest” in the investigation into the anthrax attacks that occurred in 2001. Hatfill invoked the Privacy Act. District Judge Reggie B. Walton ordered about 100 federal prosecutors, FBI agents, and federal employees connected to the investigation to sign documents in which they agreed to waive any confidentiality agreement with reporters.[11]
31. As noted by the Office of the Special Rapporteur in its pronouncement over the Taricani case: “The main foundation of the right to confidentiality is that within the scope of their work, and in order to provide the public with the information needed to satisfy the right to information, journalists are performing an important public service when collecting and disseminating information that would not be divulged were the confidentiality of sources not protected. This right to confidentiality involves providing legal guarantees to sources to ensure their anonymity and to avoid possible reprisals against them for divulging certain information to the press. Confidentiality, therefore, is essential to journalists' work, and to the role that society has conferred upon them to report on matters of public interest.”[12]
32. On April 7, 2004, Antoinette Konz of the Hattiesburg American, and Denise Grones of Associated Press, after covering a speech by Supreme Court Justice Antonin Scalia, in Hattiesburg, Mississippi, received orders from U.S. marshals to destroy their tape of the speech.[13] The journalists took the case to the courts. On September 10, 2004, the Justice Department recognized that it had violated the federal law, and that the reporters and their employees would receive US$1,000 for damages and attorney’s fees. The Privacy Protection Act prohibits the government from searching or seizing journalists’ tools of the trade, unless the journalist has committed a crime, or if in so doing one can prevent a death or serious bodily injury.[14]
[1] Reporters Committee for Freedom of the Press, “Convention ends with numerous and lengthy journalist detainments,” September 3, 2004, at: http://www.rcfp.org/news/2004/0903rncarr.html.
[2] The New York Times, www.nytimes.com February 28, 2004, http://www.nytimes.com/2004/02/28/national/ 28PUBL.html?ex=1078977845&ei=1&en=6eebed16934e1508
[3] U.S. Center of PEN International, at International Freedom of Information Exchange: http://www.ifex.org/es/content/view/full/62553.
[4] The New York Times, “Government Eases Rules on Writers in Sanctioned Nations,” December 18, 2004, at: http://query.nytimes.com/mem/tnt.html?oref=login&tntget=2004/12/16/books/16rule.html&tntemail.
[5] International Freedom of Expression Exchange, www.ifex.org, citing Reporters without Borders, April 2, 2004.
[6] Russert agreed to speak with prosecutors in August; they did not ask that he reveal any source.
[7] In August 2004, Cooper had testified on a specific source after the source released him of the pledge of confidentiality, but in October he was ordered to turn over his notes.
[8] Committee to Protect Journalists, “Contempt ruling dismissed: source waives confidentiality,” at: http://www.cpj.org/news/2004/USA24aug04na.html. “Judge Holds Times reporter in contempt in CIA case,” October 7, 2004, at: http://www.cpj.org/news/2004/USA07oct04na.html.
“Judge Orders Second Journalist to Jail,” October 13 2004, at: http://www.cpj.org/news/ 2004/USA13oct04na.html. Reporters Committee for Freedom of the Press, “Appeals court hears case over sources in CIA operative disclosure,” December 8, 2004, at: http://www.rcfp.org/news/2004/1208inregr.html.
[9] Lee had been suspected of espionage, but the charges were never brought.
[10] Committee to Protect Journalists, “Contempt ruling sends disturbing message worldwide,” August 18, 2004, at http://www.cpj.org/news/2004/USA18nov04na-2.html.
[11] Reporters Committee for Freedom of the Press, “Media subpoenaed in anthrax case,” December 17, 2004, at: http://www.rcfp.org/news/2004/1217hatfil.html.
[12] Office of the Special Rapporteur for Freedom of Expression, press release of December 8, 2004.
[13] Justice Scalia’s policy is to prohibit the taping of his speeches, but at that event he had given no such indication. Scalia apologized.
[14] Reporters Committee for Freedom of the Press, “Government concedes wrongdoing in tape seizure,” September 15, 2004, at: http://www.rcfp.org/news/2004/0915hattie.html.