No journalistic privilege

Treating reporters differently would raise thorny questions.

By Glenn Harlan Reynolds

Many people would find their jobs easier if they didn't have to respond to those pesky subpoenas. Journalists seem to feel that way: Keeping promises about confidentiality is more important, they tell us, than fulfilling their duty as citizens to testify.

I disagree, especially in those cases of leaked government secrets in which the journalist isn't a disinterested observer but something more like an accomplice. It has certainly seemed that way in the case of leaked information about Valerie Plame. The same news organizations that originally were calling for a no-holds-barred investigation of the leak turn out to know who the leaker is already. They're just not telling.

That's one of the problems with claims to journalistic privilege. Journalists aren't claiming the right to tell us things we want to know. They're claiming the right to not tell things they'd rather we didn't know.

Another problem is that claims of privilege turn the press into a privileged class. If ordinary people witness a crime, they have to talk about it. If they participate in a crime say, by receiving classified documents they have to say where they got them. Journalists want to be treated differently, but the First Amendment doesn't create that sort of privilege. Nor should we.

Many people who support these privileges say that they would be limited to real journalists. But who decides when a journalist is real? If the government decides, isn't that like licensing the press, something the First Amendment was designed to prevent? And if journalists decide, isn't that likely to lead to a closed-shop, guild mentality at exactly the moment when citizen journalism by non-professionals is taking off? All sorts of people are reporting news via Web logs and the Internet. Shouldn't they be entitled to the same privilege?

Press freedom is for everyone, not just professionals. James Madison wrote about freedom in the use of the press, making clear that the First Amendment is for everyone who publishes, not just members of the professional-media guild.

I think that reporters' privileges are a dubious idea, but if we're to have them, let's have them for everyone who reports news, not just professional journalists.


Glenn Harlan Reynolds is a law professor at the University of Tennessee. He publishes the Instapundit.com Web log.

I especially like the point regarding the hypocrisy of journalists stance that the public has a right to know, except when the information is sought from the journalists themselves.

In an interview, Norman Pearlstine, Time Inc.'s editor in chief, said (after turning over the reporter's notes):

I found myself really coming to the conclusion,that once the Supreme Court has spoken in a case involving national security and a grand jury, we are not above the law and we have to behave the way ordinary citizens do.

"... once the Supreme Court has spoken in a case involving national security and a grand jury, we are not above the law and we have to behave the way ordinary citizens do."

So, until the Supreme Court does speak, they ARE above the law? That's basically what they've been claiming, national security and grand juries be damned. Now they've decided to behave like "ordinary citizens" -- how quaint.

Gotta love the Fourth Estate!

The press corps unleashed a prosecutor on itself.

The Wall Street Journal
Friday, July 1, 2005

As ink-stained kvetchers ourselves, we'd love to come to the full-throated defense of our reporting colleagues now threatened with jail for refusing to reveal their sources. The truth, unfortunately, is that this is a debacle that some in the press corps have brought down upon themselves and the rest of us.
They did so by demanding, in liberal unison like the Rockettes, that the Bush Administration name a "special counsel" to find out who leaked the name of CIA analyst Valerie Plame. Under this pounding, the Justice Department obliged. But that special prosecutor, Patrick Fitzgerald, soon became a loose cannon threatening reporters with contempt if they wouldn't reveal their sources (presumably government officials who knew about Ms. Plame).

The two reporters--Judith Miller of the New York Times, and Matthew Cooper of Time--have now exhausted their legal appeals and face jail as soon as next week. Mr. Cooper's employer relented yesterday and said it will turn over his notes, and thus presumably his source's name. But New York Times Publisher Arthur Sulzberger Jr. said yesterday he was "deeply disappointed" with Time's decision, implying that his newspaper may defy the law and that Ms. Miller may indeed go to jail.

It should never have come to this, on either side. Mr. Fitzgerald made his bones prosecuting the mob and doesn't seem to realize that this case isn't about organized crime. It's about disorganized politics. The leak of Ms. Plame's name probably wasn't even a crime at all under the 1982 Intelligence Identities Protection Act. That statute was aimed at stopping the treasonous betrayal of secret agents in the field, not the office-bound spouse of former CIA consultant Joe Wilson, who outed himself in an attempt to assail the Iraq War and damage President Bush.

Mr. Fitzgerald has also ignored the Justice Department guidelines on pursuing source-names from journalists, which include "reasonable grounds to believe" that "a crime has been committed." And he has never publicly disclosed, even to the two reporters and their attorneys, why he needs their notes. It may be that he too has concluded that talking to the press is no crime, in which case he may by now only be pursuing a perjury rap against the leaker. If that's true, Mr. Fitzgerald will have earned a place in the Overzealous Hall of Fame.

But some in the press have been equally as willful. Liberal editorial pages were among the loudest in demanding that a special counsel be appointed to find the leaker. And only many months later, when Ms. Miller was in the dock, did New York Times editorials finally get around to admitting that the leak might not even be a crime. Their partisan loathing for Mr. Bush caused these editors to overlook the risks even to their own reporting self-interest.

They have also left the press more vulnerable than it was before. The First Amendment is nearly absolute in its protection of the right to publish, but it is far less categorical in protecting the news-gathering process. Courts have tried to balance media access to sources and information against other rights (say, to a fair trial) and government needs (such as grand jury probes).

Yet the Times fought this current battle as if it were a replay of New York Times v. Sullivan, the famous libel case, only to lose in court. Especially by inviting a 3-0 defeat at the hands of the D.C. Circuit Court of Appeals, the Times has probably left everyone in the media less able to protect sources against future prosecutorial raids. While 31 states have so-called "shield laws" protecting source disclosure, the federal government does not.

In explaining his decision to turn over Mr. Cooper's notes, Time Editor in Chief Norman Pearlstine said, "Once the [Supreme] Court denied cert., I decided we aren't above the law." We admire Ms. Miller for her willingness to go to jail to honor a personal promise to a source. But a journalistic institution has a duty not to be cavalier about its reporter's freedom, much less the rule of law.

Bloggers think they should be protected from disclosure of their sources. Read the story. Do you agree or disagree?

If I'm not mistaken, all that's required to be a "blogger" is access to a computer that's hooked up to the Internet. Anyone who owns a home computer or has a library card has that. Thus, what is essentially being requested is protection from having to disclose to the criminal justice system any information you don't want disclosed if, in a moment of lucidity, you managed to post something about it in some diatribe on the web. That's a great idea. Next step: automatic habeas relief if you say you're innocent.

If I remember Constitutional Law class correctly, the "lone pamphleteer" is considered the purest form of a free press and is the person in the minds of the justices (supposedly) when they decide a first amendment case. It seems to me that the bloggers are the 21st century version of the pamphleteer.

Having said that, I do not think that there should be a journalist's privilege. If you tell your story to a reporter, he may promise not to reveal your identity in the paper. However, you should not have an expectation that your name will never be revealed and that you will never have to tell your story in public, especially if you are revealing criminal activity.

Were Woodward and Bernstein ever subpoenaed to reveal Deep Throat's identity? I was a mere babe at the time.

I don't believe they were...I wonder if deep throat was committing a crime when he told them to "follow the money....".

This week's Austin paper again editorialized about the need for a privilege to protect against prosecutor fishing expeditions...seems like the media is refining the argument, because up until this point all we have heard is that they needed it for confidential sources. And can't the media file a motion ot quash just like everyone else if the prosecutor is overreaching with a subpoena?

(from the July 12, 2005 edition of Christian Science Monitor - http://www.csmonitor.com/2005/0712/p09s01-coop.html)

Journalists aren't above the law
By Patrick Buchanan

WASHINGTON - Going to jail for one's convictions and to honor one's word to a confidant is a commendable personal act. And, as that is the path Judith Miller and the New York Times have chosen to take, their decision can be respected. But, having taken that path, they cannot evade the consequences of their contempt of court. And they ought to stop whining about it.

The law is the law.

As for the press's claim to an absolute right to protect sources, even in criminal cases where the Supreme Court has ruled against them, it is preposterous. Both President Bush and Vice President Cheney have been questioned in the case of "Who outed Valerie Plame as a CIA operative?" What gives Ms. Miller her special exemption - a New York Times press card?

As for Miller's statement, on being escorted off to jail, that "if journalists cannot be trusted to guarantee confidentiality ... there cannot be a free press," it, too, is ridiculous. The press has never had a federal shield law. Has the American press never been free? Who do the media think they are?

If President Nixon had no right under executive privilege to protect the confidentiality of tapes containing his most private conversations with White House aides, where do Miller and the Times come off claiming an absolute right to protect notes and contents of her conversations with White House aides?

The Times hailed the court decision forcing Nixon to surrender his tapes. On what principle does the Times now stand - for it is surely not the law - to defy the Supreme Court and refuse to surrender its notes?

The First Amendment? But that amendment guarantees the right of all of us to write and publish. It does not place the working press above other Americans, all of whom, as US Judge Thomas Hogan ruled, have an obligation to give testimony to a grand jury.

Lest we forget, it was the Big Media that beat the drums for this investigation. When columnist Robert Novak reported that ex-Ambassador Joe Wilson had been sent to look into the claim that Iraq had sought yellowcake from Niger because his wife, a CIA analyst, had recommended him, it was the Big Media that demanded the Bush White House be turned upside down to find the source who had outed Wilson's wife, Valerie Plame.

The press got the investigation it demanded. And Attorney General Ashcroft, as the press demanded, brought in a bulldog from Chicago, Patrick Fitzgerald, to remove any suggestion of Justice Department bias toward the White House. But when the bulldog began to bark that the press must cooperate in the investigation it had demanded, the press howled.

The press's performance has been comical. All over town, there are journalists who know who did the leaking. But instead of revealing the names, the media demanded that Justice launch an investigation to discover the culprits, whose names they already knew.

Now Miller is in jail playing First Amendment heroine, as Time magazine, facing stiff fines, has capitulated and turned over its notes to Fitzgerald, and reporter Matt Cooper is headed for the grand jury.

What a PR debacle for the national press.

While the media may claim Miller and the Times are standing on principle to protect whistle-blowers, they are doing the opposite. They are covering up for White House aides who may have committed a crime by outing the wife of the whistle-blower as a CIA operative.

Miller is going to jail, and the Times is being fined for covering up for the very people the mainstream media demanded be exposed.

Is there a reporter's privilege to protect his sources? Surely, there is a tradition and an obligation, if a newsman has pledged confidentiality to a source, to keep one's word. But why should this be enshrined in federal law?

Journalists equate their relationship with sources to the lawyer-client, doctor-patient, priest-penitent privileges. But the lawyer protects the constitutional rights of the accused. The doctor protects the privacy of a patient. A priest protects a man confessing his sins. These privileges are not designed to protect lawyers, doctors, or priests, but those they defend, treat, or heal.

What shield laws do are empower journalists to protect themselves from having to testify, and, second, to protect the leakers, liars, slanderers, thieves, crooks, and criminals who are happy to feed them, as well as the whistle-blowers. Shield laws put journalists above every other American.

Freedom of the press is a right that belongs to all of us, from Times reporters to bloggers to kids writing about pot parties for the high school paper. Why then should only working reporters be exempt from the law that requires all of us, from presidents to paupers, to testify, when called before a grand jury? It is time for the press to give up its pretense to being some special priestly class and return to earth.

We are not better than, nor are we above, the people we write about. Get over it. We are the good, the bad, and the ugly, just like everyone else.

� Patrick J. Buchanan, a senior adviser to three presidents, was director of communications in the Ronald Reagan White House. �2005 Creators Syndicate, Inc.

Shannon - Thanks for posting the Buchanan article. CrossFire on CNN years ago was so much better with him on it. His article is well written and logical with less rhetoric than I expected.

Redbook Reporter Refuses To Disclose Source Of Recipe
November 9, 2005 | Issue 41�45

ATLANTA�A federal judge said Monday that magazine writer Nancy Steuber will be held in contempt of court if she continues to withhold the source of a recipe for maple-glazed ham published in Redbook magazine in February.


Steuber takes a stand for journalistic ethics outside the Atlanta Federal Courthouse Monday.

Judge Antonio Pelicore said that Steuber has until Thursday to reveal the name of the "culinary miracle worker" responsible for the recipe, which was included in a Redbook feature titled "Easter With Zip."

"It is the opinion of the court that this is the most devastatingly succulent ham to come across our docket in a very long time," said Pelicore, enjoying a sandwich made of leftovers. "The state has a vested interest in learning the identity of the person responsible for a dish of this mouth-watering magnitude."

Pelicore added: "I'll ask you again, Ms. Steuber. Where did you find this amazing recipe?"

Steuber, two-time winner of the Pulitzer Prize for recipe reporting in 1996 and 2001, said that to divulge her source would jeopardize her First Amendment rights, as well as relationships with high-level recipe sources she has worked for years to develop.

Despite Steuber's staunch refusals, prosecutor Wendy Hardin said that she "absolutely must be allowed" to probe the recipe to the fullest extent, which means interviewing the individual who leaked it to Redbook. Many close to the case believe that the source of the recipe is a member of a tight-knit family with a glazed-ham dish that has endured for generations.


"I think the people have a right to know what inspired this cook to create a sweet glaze that doesn't overwhelm the savory taste of the ham," Hardin said. "Such deliciousness cannot remain hidden any longer."

"It's a crime," Hardin added.

Some journalists have suggested that Steuber's refusal to reveal her sources is motivated by self-interest, not by a desire to protect free speech.

"Steuber exerts incredible power through her ability to determine how much of a source's information is exposed," said Annette Scotti, whose articles on recipe-ownership issues have appeared in The Nation. "If she's withholding valuable information that is preventing Americans from enjoying a savory dish, she's doing an enormous disservice to the country. What if this maple-glazed ham source also has a tantalizing recipe for turkey stuffing?"

Steuber, a Redbook staffer since 1989, is best known for her articles such as "Dealing With Newlywed Stress" and "Colorful Autumn Ponchos You Can Crochet Yourself!" While she has never before faced jail time, she remained determined to honor her professional obligations to her editors and sources alike.

"It's a women's magazine journalist's job to report on recipes of this caliber fairly and accurately," Steuber said. "But when it comes to who is behind those recipes, or how best to use the leftovers, I'm afraid I'll have to remain silent, no matter the personal cost."

another Onion article?

Yes, but not so far-fetched. I feel the same way about my chocolate chip cookie recipe.

Texas TV anchor quits amid drug probe

CORPUS CHRISTI, Texas, Feb. 22 (UPI) -- A Corpus Christi, Texas, television news anchor who quit after two years is part of a drug dealing investigation relating to a news story he was working on.

Kevin Steele, a 20-year broadcast news veteran and former KZTV evening news anchor, said he isn't the one being investigated surrounding a Feb. 9 cocaine buy.

The Corpus Christi Caller-Times reported Steele made the cocaine purchase in Aransas County as part of a story into drug dealing.

He immediately turned the drugs over to Corpus Christi police who then contacted the county sheriff's department.

Sheriff Mark Gilliam said the department is investigating who sold Steele the drugs.

KZTV officials wouldn't comment on the case or Steele's tenure, citing corporate policy.

Steele and the station's news director testified before a grand jury.

Didn't we just have a thread on something like this ?

quote:

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Originally posted by Stacey L. Brownlee:
Didn't we just have a thread on something like this ?

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There are about 4 of them floating around, so I tried to pick the most applicable one.