The headline on an op-ed that the New York Times correspondent James Risen wrote late last year
was pointed in its assignment of blame: “If Donald Trump Targets Journalists, Thank Obama.”
The last administration spent about seven years seeking to compel Mr. Risen to testify in a criminal leak investigation involving
classified information in his 2006 book, “State of War: The Secret History of the CIA and the Bush Administration.”
Though it ultimately didn’t require him to testify — most likely for public relations reasons, Mr. Risen figures — it won the right to do so in the Fourth Circuit, where the United States Court of Appeals ruled
that the First Amendment didn’t protect reporters from subpoenas to testify about “criminal conduct” that they “personally witnessed or participated in.”
In other words, Mr. Abrams said, the appellate court ruled
that “there’s no protection for journalists at all in front of grand juries.” (The Supreme Court declined to hear the case.)
Mr. Abrams said that by the second half of the last century, the courts had begun to view “the First Amendment in an expansive
and generally highly protective way.” It started with liberal jurists and eventually spread to the conservative jurists as well, which Mr. Abrams called “one of the most remarkable developments of the last 20 years.”
That bodes well for news organizations in general, he said.
But Mr. Abrams said, “I think Gawker would have won if it had had a chance to go higher.”
Juries, he said, have always shown a willingness to punish journalists — who are down there with lawyers
in the public esteem rankings — just as appellate courts are often willing to reverse those juries.
