WaPo: DOJ Tracked Fox News Reporter in North Korea Leak Probe

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The furor over the U.S. Department of Justice subpoena of the phone records of Associated Press reporters and bureaus (see "TUOL" post 5/14/13) has yet to abate, but in a story yesterday that is sure raise the concern of journalists and free press advocates, the Washington Post reported that the DOJ zeroed in on a Fox News correspondent in its probe and subsequent charges against government adviser Stephen Jin-Woo Kim in 2010 for allegedly disclosing national defense information concerning North Korea.

Kim's trial arising from the alleged leak of classified information in 2009, regarding possible nuclear tests by North Korea in response to U.N. sanctions may go forward in 2014, but in its review of  affidavits and other court documents and an interview with Kim's attorney, the Sunday Washington Post story disclosed DOJ's purported actions against James Rosen, a Fox Washington correspondent, who did a story in June 2009, about U.S. intelligence officers warning about reprisals from North Korea.

The Post story claims DOJ employed security badge access records to monitor Rosen's visits to and from the State Department and obtained a search warrant to review Rosen's emails as part of its investigation of Kim.

Although at present, there is no federal shield law and the U.S. Supreme Court has held that the First Amendment does not create a reporter's privilege regarding confidential sources, government has generally subpoenaed reporters as a last resort when unable to obtain vital information through other means, and traditionally has negotiated with the news media over the release of confidential information.

This blog has railed about the threat to the First Amendment and the "chilling effect" on the marketplace of ideas that would result from sources not speaking to reporters out of fear of being exposed by the government. The staff of "TUOL" is resisting its glib instinct to respond to the WaPo story by noting that because Fox News is involved, no journalist is being threatened.

Rather, "TUOL" will join the chorus lamenting a DOJ that is running amok in its pursuit of "leakers" at the expense of freedom of speech and of the press, the cornerstone of American society, and advises President (and former Constitutional Law Professor) Barack Obama to bone-up on his First Amendment lecture notes.