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Seattle Journalist: Subpoena Endangers Press

DAVID FOLKENFLIK, HOST:

A pair of recent events have put journalists covering protests at the center of investigations by law enforcement and the Department of Homeland Security. First, in Seattle, journalists from The Seattle Times and four local TV stations went to court to prevent the city's police department from viewing their unpublished photos and videos.

Police say they want to see the material in order to identify people who set squad cars on fire and stole two police weapons in a May protest that turned chaotic. The police department's subpoena and a judge's decision that the material must be turned over has drawn widespread criticism from media advocacy groups, who call it a violation of press freedoms.

It was also revealed last week that the Department of Homeland Security had been compiling intelligence dossiers on journalists writing about protests in Portland. The Washington Post reported on these DHS intelligence reports, which were focused on two journalists who tweeted out leaked documents from the agency, once more raising concerns about challenges to press freedoms.

I'm joined now by one of the journalists named in those homeland security intelligence reports, the editor-in-chief of the Lawfare blog, Benjamin Wittes. Benjamin, welcome.

BENJAMIN WITTES: Thank you.

FOLKENFLIK: And I'm also joined by Michele Matassa Flores. She's executive editor of The Seattle Times.

Welcome to you, Michele.

MICHELE MATASSA FLORES: Thank you.

FOLKENFLIK: Michele Flores, I'm going to start with you. You've written that your objection to the Seattle Police Department reviewing the 90 minutes of video footage they seek is twofold. You said your objection's based on a philosophical foundation and also on protecting the physical safety of journalists. What do you mean by that?

FLORES: Well, first of all, David, this subpoena by the Seattle Police Department - it does endanger the independence of the media. We're out there covering these protests right now. This just happens to be the story of the day, but we're out independently covering organizations, public officials and private businesses every day. And we need to remain independent from those we cover. And this subpoena can make it appear that we're an arm of law enforcement.

So, extending from that, our journalists right now who are out there covering the protests - particularly our photojournalists - and they're very easily identifiable - and protesters who don't want to be photographed are resisting our people being on the scene. We've had photographers and videographers chased, rocks thrown at their heads. They've been punched. Right now, the best we can do is tell those people that we are independent of law enforcement. Contrary to their fears, we are not they're trying to get them in trouble. The subpoena puts our people at risk on the street.

And I would add a third element to our concerns, which is that, you know, there's a perception among some across the country and in the White House that the media are the enemy of the people instead of being the protector of the public and a proxy for the public. We are there to report the facts and to document current events and to record history.

FOLKENFLIK: I want to turn now to the level of federal authorities. Benjamin Wittes, I should mention the acting secretary of Homeland Security, Chad Wolf, on Friday after the Washington Post story ordered that the intelligence shop at DHS stop collecting information on journalists, said he was announcing an investigation to figure out what was happening and then reassigned the acting chief of the intelligence shop. So I want to be clear for listeners - this story is still developing. Yet you obtained the DHS reports in which your name, your activities are mentioned. What was in them?

WITTES: Well, it's kind of odd, but what was in them was my tweets. My Twitter feed goes out to, you know, about 400,000 people, and so it's hardly a private document. But DHS seems to have prepared an intelligence report about each of two tweets that showed images of internal DHS intelligence and analysis, memoranda and emails. And in each case, the intelligence and analysis unit, which is called INA, filed an intelligence report summarizing the tweet and with an image of the tweet and authorized the dissemination of that to state and local law enforcement as well as to foreign intelligence partners.

FOLKENFLIK: DHS is not only permitted but expected to collect and share information and intelligence about homeland security threats. What do you find so troubling about these reports involving the government's review of your tweets, which are obviously publicly posted?

WITTES: My problem honestly is not with the fact that my tweet was shared. That is to be expected, and it's perfectly reasonable. It's the fact that they were shared in the form of intelligence work product.

And my concern about that is not on my own behalf. It's actually on the behalf of protesters because if it's OK to do what they did to me, which is to take purely First Amendment protected activity - i.e., journalism - and make it the basis for public record intelligence collection, I don't see why it's not OK to collect on people simply because they are engaged in protests, which is also a First Amendment protected activity - same thing, really. And so I'm concerned that if what they did with me is OK, it's actually the tip of a much larger iceberg.

FOLKENFLIK: I want to turn now back to Seattle. Michele Flores, in Seattle, a spokesperson for the police department tells NPR that in typical cases, when police seek evidence, they obtain a search warrant, but that in rare cases, where evidence is held by the media, state law requires evidence be gathered by way of a subpoena. They argue they followed the exact process described by state law for this kind of situation.

FLORES: They did take the first step that's required. But under our shield law, they have to meet a four-part test to get the material. Now, the judge in this case ruled that they did meet the four parts of this test to cross the threshold. We disagree. Those requirements are that the material is highly relevant and material, that it's critical and necessary to the investigation, that there's a compelling public interest and that the police have exhausted all other measures to solve their case. We are arguing that they did not exhaust all those measures. And one or two of the other elements are arguable also, so we will be appealing the case.

FOLKENFLIK: And lastly, I wanted to ask each of you in turn, perhaps starting with you, Michele Matassa Flores, do you see any throughline between what you've experienced in recent days in these two episodes? Is there anything that ties together the experiences journalists are going through?

FLORES: Yes, absolutely. You know, I think we're at a critical point in history right now when you look at the role of the media and what our protections are. You know, this industry was protected in the Constitution. That was written into the Constitution for a reason. Our role is fundamental to democracy. It sounds kind of schlocky, but it's true. And I think whether it's a city law enforcement agency going after unpublished material or a federal government building dossiers on journalists, yes, these things are definitely all connected.

FOLKENFLIK: Benjamin Wittes, what would you say?

WITTES: I would say the throughline is that the federal government - and for that matter, as Michele points out, the state governments - are having trouble deciding who journalists are. And so in one situation, there's a confusion about whether journalists are the arm of the state. And in the other situation, there's a confusion about whether the journalists are the arm of the protesters.

And I think what Michele has eloquently said is that she's neither. And I would feel the same way. And I don't want to be co-opted by the government. And I also don't want to be grouped in with the protesters for purposes of surveillance.

FOLKENFLIK: Benjamin Wittes is a senior fellow at the Brookings Institution and editor-in-chief of the blog Lawfare. He was one of the journalists named in intelligence dossiers that were compiled and then disavowed by the U.S. Department of Homeland Security. We've also heard from Michele Matassa Flores. She's executive editor of The Seattle Times. The paper has been in court along with four local TV stations fighting a subpoena from the Seattle Police Department for access to unpublished photos and videos.

Thank you both for joining me.

FLORES: Thank you, David.

WITTES: Thanks very much. Transcript provided by NPR, Copyright NPR.