Category Archives: blogging

Plagiarism is back (Did it ever really go away?)

By Christopher B. Daly 

Jeez, I hope that headline’s original. (I have this haunting feeling that it seems familiar — I better google myself to make sure. Phew. No direct hits. Now, where was I?)

Amidst this recent outbreak of plagiarism charges (the Montana senator, the Times arts writer, some guy at BuzzFeed, and others), it’s worth reviewing what plagiarism is and why it plagues us.

Plagiarism is at once easier to do and easier to catch. Thanks to computers and the internet, it’s very easy to copy things — even things that a journalist, a speechwriter, or any other sincere person intends to use as source material or as quoted matter. On the other hand, thanks to those same computers and the internet, it’s also very easy to catch someone who plagiarizes — whether deliberately or inadvertently.

That’s why I welcome today’s comment by Margaret Sullivan, the NYTimes‘ public editor. Here’s the nub of her (presumably original) comment:

Write your own stuff; when you can’t or won’t, make sure you attribute and link.

Use multiple sources; compare, contrast, verify.

 

That could go up on the walls of every classroom at Boston University, where I teach basic reporting classes in our Journalism program. In fact, I may do just that this fall — with proper attribution, of course.

Personally, I think the heart of the matter is in those first four words: WRITE YOUR OWN STUFF. If you are any kind of a writer who cares about words, you will know instantly whether a phrase or sentence or paragraph in some chunk of prose that has your name at the top was written by you or by somebody else. If you didn’t write it, give credit where it’s due. Any questions?

Class dismissed.

 

 

 

 

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News comes from far away. . .

By Christopher B. Daly

Do we get too much information about distant conflicts, or too little?

The New York Times offers two very different answers.

One comes from Anjan Sundaram, a former stringer for The Associated Press in Congo. So, he should know. He laments the withdrawal of American correspondents from many countries, the shuttering of overseas bureaus, and a general decline in the coverage of wars, violence, and the politics of many nations.

News organizations need to work more closely with stringers. Make no mistake: Life as a stringer, even for those eager to report from abroad, is daunting. It’s dangerous, the pay is low and there is little support. For years after I left Congo, my position with The A.P. remained — as it is now — vacant. The news from Congo suffers as a result, as does our understanding of that country, and ultimately ourselves.

The other view comes from my Boston University colleague David Carr, the Times‘ media columnist. In his Media Equation piece today, Carr describes the sensation of information-overload that he has been experiencing lately as social media bring him a flood of data about a rocket war in Gaza, plane crashes, and the other disasters.

Geopolitics and the ubiquity of social media have made the world a smaller, seemingly gorier place. If Vietnam brought war into the living room, the last few weeks have put it at our fingertips. On our phones, news alerts full of body counts bubble into our inbox, Facebook feeds are populated by appeals for help or action on behalf of victims, while Twitter boils with up-to-the-second reporting, some by professionals and some by citizens, from scenes of disaster and chaos.

In my view, they are both right, at least to a degree. Sundaram is correct that many U.S. news organizations have retreated (usually for economic reasons) from their commitment to covering international news. In particular, they have lost the budgets to pay for keeping full-time staffers in locations around the world that are not boiling over. I’m talking here about trained journalists who have the time to become multi-lingual, to learn about other cultures and societies, to develop good sources, and to roam about developing a good first-hand sense of the place they are covering. These are the kind of people you want to be able to in a crisis, to explain a self-immolation in Tibet, or a riot in Indonesia, or a drug war in Central America. And, yes, there are too few of those.

But that’s not the same issue David Carr was identifying. He is describing the flood of images, information, and opinions that come streaming at Americans from the hotspot of the week. And yes, he’s right about. In a country or region that America is paying attention to, the flow of news is usually pretty abundant. That doesn’t mean that it’s always very useful, only that there is a lot of it.

This general problem was identified almost a century ago by Walter Lippmann — journalist, author, and media theorist — in his landmark book about journalism, propaganda, and politics, Public Opinion.

News comes from a distance; it comes helter-skelter, in inconceivable imgresconfusion; it deals with matters that are not easily understood; it arrives and is assimilated by busy and tired people who must take what is given to them.

That is, for passive news consumers, the picture of the rest of the world is fragmentary, random, and often blurred or blacked out. I dare say that I am not the only avid consumer of U.S. news reporting who could not tell you a single meaningful thing about Indonesia (the fourth most populous country on Earth and the largest Muslim-majority nation). I don’t know anything about it, because no U.S. news organization has a single full-time correspondent there. I cannot say I am bombarded by social media (or any other kind) about Indonesia. But if something should happen there that draws the attention of the United States, we can be sure the firehose will be turned on, and we will start to absorb a torrent of images, facts, and opinions. Until our attention shifts.

Thurber-Lippmann screenshot

by James Thurber

 

 

 

 

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Must-read article about Brazil and the World Cup

By Christopher B. Daly

If you read only one article about Brazil as the country starts to host the World Cup, here is the one to read. It is written by one of my star former B.U. students, Matt Negrin (who would be my first choice in a pick-up game that involved reporting, initiative, imagination, and writing).

Matt is an intrepid explorer, as this piece amply demonstrates. (“Not killed” is a recurring theme. .  .). He is also a graceful, often playful, writer. In this piece about play, I enjoyed his many references to the games of his own childhood (from the Sims to adult-driven, trophies-for-everyone American soccer). At

The beautiful game Getty

The beautiful game
Getty

the same time, he’s deadly serious about the life he is seeing in the favelas, and he brings a measure of respect and gravitas to people who don’t have much of either.

This piece is part of a bigger project Matt is working on — a book about the insanity of soccer fans worldwide. He has made stops in Asia and Europe (that I know of), and he is naturally in Brazil now for the Copa.

His work makes me happy to read, and it makes me optimistic about the future of storytelling.

[BTW, Matt's Brazil piece was published (if that's still the right word), by SB Nation. (They did a beautiful job on it, but I personally would like to see a much blacker typeface; if you are going to go long, you can't ask people to read that faint gray type all day. Sheesh.) If you think "sports writing" is all about who won a game or about how some young millionaire's groin feels, this is the piece for you. SB Nation (short for Sports Blog Nation) is part of the growing Vox Media online empire, and I hope they are making gobs of money. H/t to Glenn Stout for acquiring Matt's piece.]

 

"That's just the way it is" Getty

“That’s just the way it is”
Getty

 

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SCOTUS: If you make journalists criminals, then only criminals can be journalists.

by Christopher B. Daly 

It’s no surprise, I suppose, that the U.S. Supreme Court has rejected an appeal from a New York Times reporter who has been seeking to avoid being sent to jail for his refusal to testify about his sources. The ruling is a setback for reporter James Risen and for the entire enterprise of journalism as well. The reason: the high court cannot find protection for reporters in the U.S. Constitution.

The First Amendment famously says (in part): “Congress shall make no law . . . abridging the freedom of the press.” As I have written, I believe that the First Amendment goes beyond the right to disseminate news and includes the right to gather news. In some situations, that news-gathering function, also known as reporting, may require reporters to extend a promise of confidentiality to a source. I believe that they have a constitutionally protected right to do so. (Actually, to be precise: I believe that you and I and the rest of the American people have the right to learn what the journalist can learn — that is, we are entitled to information, especially controversial, secret information, that will enable us to make good decisions about powerful institutions.)

Many people disagree. They invoke the ancient legal doctrine which holds that justice demands every person’s testimony — no exceptions (oh, except for the “testimonial privilege” widely granted to clergy, attorneys, spouses and others — plenty of people enjoy the right not to testify with no deleterious effects on society). Superficially, this makes a certain amount of sense. But it overlooks the chilling effect on both sources and reporters if journalists can be dragged into court and ordered, under oath, to break their word and reveal the identities of their confidential sources. The fully predictable result of this doctrine will be that the people will not learn all that they might about difficult, hidden truths.

And a word here about criminal justice. Obviously, the investigation, prosecution, and punishment of crime is an important value in society. I would not want to live in a society that did not suppress crime. But we must bear in mind that law enforcement is not a transcendent value; it is not so important that it can be used to sweep away all other rights and values. It has to be balanced against other important priorities (like being secure in our persons and papers).

I maintain that it is better for a handful of prosecutors to miss out on the testimony of a handful of people than it is to impose blinders on the press. I don’t want to live in that kind of society, either. Prosecutors pursue justice; journalists pursue truth. Those are both important, and sometimes allied, enterprises. But they are not identical, and when they conflict, my default position would be to privilege truth-seeking.

Also, bear in mind: prosecutors have plenty of techniques and powers that journalists don’t have.

–They have the power to subpoena (non-journalist) witnesses and question them under oath.

–If witnesses lie, prosecutors can charge them with perjury.

–Prosecutors have the power to induce suspects to talk by negotiating plea-bargains.

–Prosecutors have the home-team advantage in every courtroom in the country.

–Prosecutors have the power to get a search warrant and spy on suspects.

If prosecutors can’t solve a particular crime with all those powers (which journalists don’t have), then maybe they’re just not trying hard enough.

One implication of today’s Supreme Court ruling: until there is a new array of justices on the high court who properly understand the Constitution, I guess the only remedy is to support legislation (S. 987) to create a federal shield law for reporters. Incidentally, most states already have shield laws that protect journalists in state courts, and we have not suffered any terrible crime wave as a result. All those state AGs and DAs somehow manage to live with laws that uphold press freedom and balance it against the imperatives of law enforcement.

 

 

 

 

 

 

 

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MEDIA: David Carr has seen the future

By Christopher B. Daly 

And the future for journalism is . . .

  DIGITAL. . .

                                           PROFITABLE . . .

                                                                 AND HERE NOW!

Focusing on the recent decision by Ezra Klein to decamp from the old-school Washington Post

Ezra Klein, pointing to his major asset.  AP photo

Ezra Klein, pointing to his major asset.
AP photo

when the legacy medium could not accommodate his demands, Carr sees an array of “digital natives” who are managing to do good (or at least decent) journalism and make money at the same time.

 

If true, three cheers for those on-line winners!

 

Here’s Carr’s take:

In making the switch, Mr. Klein is part of a movement of big-name journalists who are migrating from newspaper companies to digital start-ups. Walter Mossberg and Kara Swisher left Dow Jones to form Re/code with NBC. David Pogue left The New York Times for Yahoo and Nate Silver for ESPN. At the same time, independent news sites like Business Insider, BuzzFeed and Vox have all received abundant new funding, while traffic on viral sites like Upworthy and ViralNova has exploded.

All the frothy news has led to speculation that a bubble is forming in the content business, but something more real is underway. I was part of the first bubble as a journalist at Inside.com in 2001 — an idea a decade ahead of its time — and this feels very different.

The web was more like a set of tin cans and a thin wire back then, so news media upstarts had trouble being heard. With high broadband penetration, the web has become a fully realized consumer medium where pages load in a flash and video plays without stuttering. With those pipes now built, we are in a time very similar to the early 1980s, when big cities were finally wired for cable. What followed was an explosion of new channels, many of which have become big businesses today.

Still, some things don’t change all that much. As Carr points out, it still takes some serious money (about $25 million, he says) to launch a big site, and it takes time (5+ years, he estimates) to work out the kinks, find your audience, build a staff, and earn a reputation for being worth a visit.

[FULL DISCLOSURE: David Carr is no longer just the most influential columnist writing about media and the web, but he is also a new colleague of mine on the Journalism faculty at Boston University, where is the new, inaugural Andrew Lack Professor in the economics of journalism.]

 

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Narrative: how long is too long?

By Christopher B. Daly 

That’s a question raised by a controversial recent piece on the Grantland site and by a critique posted today on the Times op-ed page. As Jonathan Mahler puts it:

There’s a lot of excellent magazine-length journalism being done now, and Grantland publishes plenty of it. The problem is that long-form stories are too often celebrated simply because they exist. And are long. “Long-form, on the web, is in danger of meaning ‘a lot of words,’ ” as James Bennet wrote recently in The Atlantic, the magazine he edits.

Turns out, there are some unknown number of readers who like long articles and books and will hang in there through thousands upon thousands of words (provided, I assume, that the words are actually interesting).

Don’t take my word for it. Look at sites like longform and longreads. Get comfortable.

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Partisanship in journalism: a discussion

By Christopher B. Daly

For readers’ convenience, I am posting some material that airs out the issue of partisanship in the news media. In sequence, here are:

1. A NYTimes invitation to a Sunday Dialogue, a feature of the paper’s Sunday Review section in which readers are asked to respond to a short essay.

2. My reply as published on Dec. 7, 2013.

3. A thoughtful email that I got from a reader, who gave me permission to post his ideas here.

4. The Sunday Dialogue replies by people other than me.

5. The original author’s reply to the replies.

6. My reply to that reply.

08letters-articleLarge

 

How Fox News, MSNBC and others present the news.

 To the Editor:

An autobiography gives an intimate account of a life, but to get the larger picture, you also need the biography.

The same goes for news. Relying on one source, or even on several sources with the same bias, will leave you with only part of the story.

That’s why the much maligned right-wing media is just as important as the so-called mainstream press. Fox News and others on the right certainly have a deeply embedded conservative bias, but the liberal bias on the other side is just as pervasive. Taken together, they roughly fill each other’s omissions.

Fox, for example, spent a good part of the past year digging into the Benghazi attack and I.R.S. tax-exempt status stories and talking hopefully about smoking guns, while the mainstream press was determined to take the Obama administration’s word for it that it did nothing wrong in either case.

More recently, when the president’s pronouncement about keeping your health insurance proved false, it was reported as a lie by the right and as a simple misstatement by the left.

And when the Obamacare website failed so miserably that not even the mainstream press could cover for it, the networks were obliged to sound like Fox for a while, although noticeably lacking was the appetite for pursuit that characterizes their coverage of Republicans.

Fairness in journalism requires not that every story or point of view receive equal weight but that every valid position receive equal respect. Thus the pro-life position should be treated with the same validity as pro-choice; small-government conservatives with the same respect as tax-and-spend liberals; Republicans as more compassionate than they sound and Democrats as less omniscient than they think.

But since journalists and news organizations are partisan at heart, one must sift through the best reporting and punditry from each side of the journalistic divide and take all the biases and agendas into account to arrive at an informed understanding of any story.

MARK R. GODBURN
North Canaan, Conn., Dec. 2, 2013

The writer is an antiquarian bookseller.

Here’s my comment:

In his lament about bias in the news media, Mr. Godburn assumes that unbiased journalism is possible and desirable. History suggests otherwise.

In the 18th and early 19th centuries, American journalism was highly political, often polemical and openly biased. That was the kind of journalism in which the likes of Sam Adams and Thomas Paine gloriously argued for liberty, and it was the form of journalism that was on the founders’ minds when they enshrined the doctrine of a free press in the First Amendment.

Only later, beginning with Benjamin Day’s Sun newspaper in 1833, did American journalists begin to develop a strong tradition of factual reporting. In part, this was the result of Day’s ambition to sell his paper to every reader (“It Shines for All”) and not limit his audience to members of any one political party.

In the 20th century, the major broadcast network news divisions, first in radio and then in television, reinforced this idea. They not only wanted the highest possible ratings, but were also operating as publicly traded corporations and were regulated by the Federal Communications Commission.

Nowadays, from within the turbulence of the digital age, we can begin to see that the years when big media companies were purveying what they described as nonpartisan, factual reporting were actually a historical period that is already fading into the past. The Internet has reinvigorated the “advocacy tradition” in journalism, and it has also made possible new forms of reporting such as crowd-sourcing, reporting that enlists the audience and the like. The spirit of innovation lives.

CHRISTOPHER B. DALY
Boston, Dec. 4, 2013

The writer is a professor of journalism at Boston University and the author of “Covering America: A Narrative History of a Nation’s Journalism.”

Here’s the email I got from blogger Steve Claflin:

Professor Daly:

Thank you for “Partisanship in the Media” in the December 8 New York Times letters.

The revived “advocacy tradition” problem you mention might be easier to manage if we had a form of majority rule that allows the general public to have more influence.

In the old days, the House was able to vote on any bill and the majority would prevail. Until an important bill recently passed by a wide margin, a Tea Party minority could usually intimidate other members, especially the Speaker, and prevent legislation that would easily pass from even getting to the floor. The minority party in the Senate can routinely block action on bills, because minority rule is built into Senate procedures. 60 votes are needed, with the help of a fickle minority, to pass legislation.

Is there anything more vital to democracy than majority rule? Is this what distinguishes democracy from autocracy? Is this what a democracy needs in order to succeed? We have the elections we normally associate with a democratic process. We reassure ourselves by going through the motions.

But the active ideological minorities in Congress, and the members who are owned and operated by special interests that donate large sums of money, are repeatedly able to slow or block or derail changes those few oppose and the rest of us generally favor. As such repeated occurrences so rudely remind us, we can have the structure, the trappings, the proceedings, the appearance of democracy without having majority rule.

Here are the other comments published in the Times:

Readers React

In an ideal world, graced by Enlightenment ideals, Mr. Godburn’s recommendation that citizens sift through biases of diverse news media outlets to form a complete perspective would be warmly endorsed. However, in this far-from-ideal world, individuals live in media echo chambers, selecting out viewpoints that agree with their own and sometimes avoiding conflicting ones.

Research finds that conservatives gravitate to Fox News and liberals to MSNBC — as well as to like-minded websites. A Pew Research Center study reported that from August to October of 2012, just 6 percent of Fox News’s election stories about President Obama were positive, while only 3 percent of MSNBC stories about the Republican presidential candidate Mitt Romney were positive.

Exposure to biased media strengthens partisan biases, exacerbating political polarization rather than producing the more informed understanding that Mr. Godburn desires.

RICHARD M. PERLOFF
Cleveland, Dec. 4, 2013

The writer is a professor of communication at Cleveland State University.

I read The New York Times every morning. I also watch more MSNBC than I like to admit. Occasionally, for entertainment, I’ll wander to Fox for a Bill O’Reilly moment or two.

Mr. Godburn’s thesis is an example of false equivalence. The Times is real journalism. But even The Times sometimes stretches too far in the service of “journalistic objectivity.” When one perspective is true and the other is propaganda, they should not be presented as equally valid.

As to MSNBC and Fox: The MSNBC host Rachel Maddow, for example, is surely dramatic. But I have never encountered an instance in which she was fundamentally dishonest. On the other hand, Fox is frequently and outrageously untethered from the truth, and its talking heads are attack dogs. Anyone consuming equal doses of this “news” will have intellectual indigestion.

If you bend over too far in the effort to be balanced, you’ll fall flat on your face.

STEVE NELSON
New York, Dec. 4, 2013

Well said, Mr. Godburn. Political correctness and a pervasive left-wing media bias are corrosive and do immense harm to the democratic process. People eventually find out that they have been misled. This breeds cynicism and mistrust. The left and the right learn to develop their own separate versions of the “truth.”

But while most right-wing news sources acknowledge their bias, those on the left deny their bias. Left-wing news sources are suffering a fallout in ratings because people are waking up to these facts and don’t like being manipulated.

FRANK COOK
Wayne, Pa., Dec. 5, 2013

Mr. Godburn makes a telling point, but he doesn’t go nearly far enough. His assertion that liberal and conservative news outlets “roughly fill each other’s omissions” assumes that there are exactly two reasonable points of view toward any given social issue; that these viewpoints are locked in a zero-sum game whereby each one can be validated only to the degree that the opposing one is impeached; and that they happen to correspond to the platforms of our two leading political parties.

Both parties are only too eager to promote this theory themselves, since it implies that together they have a monopoly on the truth. So a responsibility of both a free press and its readers is to examine both contrary viewpoints critically and consider other viewpoints — a third, fourth or fifth perspective — that have not been embraced by either side.

THOMAS LEITCH
Newark, Del., Dec. 4, 2013

Balanced news media is essential in any democracy. But let’s remember what brought us to the present situation — the 1987 repeal of the Fairness Doctrine, which required the airing of contrasting views on public issues, and the loosening of regulations on media concentration, allowing many media outlets to fall under the control of a few corporate-owned conglomerates.

Both have created a situation in which media is not only biased and unbalanced, but overwhelmingly influenced by the opinions and wishes of its corporate masters.

DOMINIC QUINTANA
Astoria, Queens, Dec. 4, 2013

Having recently returned from a trip to Brussels, I found the evening news there to be refreshing and professional. One subject wasn’t beaten to death 24/7 as it is here. You didn’t have to flip from channel to channel to see the “whole” picture, and the news was international in nature. In the United States you rarely hear about what is going on in Africa, Australia and, actually, most of the world.

It is a shame.

BONNIE CHALEK
Ridgewood, N.J., Dec. 4, 2013

I agree with Mr. Godburn that we need different perspectives. I would like to point out that Fox News is the No. 1 news source in America. Surely, that should qualify Fox as “mainstream.”

Studies have also shown that, for many Americans, Fox News is their only source of news. Those viewers are getting a slanted perspective — not balance. Defenders of Fox News often portray it as an underdog struggling to have a voice in the crowd of “mainstream” outlets, but that depiction simply isn’t consistent with its ratings.

I commend Mr. Godburn for admitting that news outlets he identifies as left-leaning did report on the problems with Obamacare. I find that so-called left-leaning news outlets, including The New York Times, are frequently critical of Democrats and their policies.

Mr. Godburn would have a much more difficult time finding comparable examples of Fox News criticizing the G.O.P. — except perhaps when it criticizes moderate Republicans for not being in lock step with the rest of their party.

TOBY PLEWAK
Easton, Mass., Dec. 4, 2013

It may be a fool’s errand to think that we can overcome media bias. The media is ultimately a collection of voices of various people, who generally stick to certain biases and opinions. The answer instead may be to encourage media outlets to be more forthcoming about their biases.

If we, as media consumers, know that a mainstream news outlet typically holds a certain viewpoint, then we can take in the news with a better understanding of what information may be missing or may be shaded one way or another. As it is, given the rather obvious political positions held by certain newspapers and television news divisions, many of us have already begun interpreting the news in this way.

MATTHEW K. KERFOOT
New York, Dec. 4, 2013

Here is Godburn’s last word:

The Writer Responds

Professor Perloff reinforces my point by noting that conservatives gravitate to right-leaning news sources and liberals to left-leaning ones, often without being exposed to contrary views or inconvenient facts.

But then he says that going to such biased sources only exacerbates the problem, as if he thinks there are reliably unbiased sources that one can go to instead. There are not, and that is why it is necessary to mine a variety of biased ones.

Mr. Nelson engages in the cheap liberal tactic of Fox-bashing. If Fox’s talking heads are attack dogs, they are poodles compared with the pit bulls he favors at MSNBC. Simply calling one’s favored sources true journalism and the other side propaganda doesn’t make it so. And if too much news causes intellectual indigestion, too little causes intellectual blinders.

Mr. Leitch is correct that there are more than two points of view. And examining all of them will not necessarily allow one to arrive at some desired middle ground. Just because you have one foot in hot water and the other in cold doesn’t mean you’re comfortable.

Professor Daly’s claim that I assume unbiased journalism is possible and desirable may have been a good lead-in for his journalistic history lesson, but that’s not what I said. The problem is not that journalists are biased — it’s that they claim they aren’t.

MARK R. GODBURN
North Canaan, Conn., Dec. 5, 2013

And, of course, since this is my blog, here’s my final, final word:

I will grant that maybe I misread his original post. When he wrote that all journalists and news organizations are partisan at heart, I thought he considered that a flaw. Perhaps inevitable, perhaps correctable (by reading multiple sources from different perspectives) but still a problem. If he says he doesn’t think so, then who am I to argue? I would say that many people (including a lot of journalists) do consider partisanship some kind of original sin of journalism.

Comments?

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NY court issues a major ruling for press freedom

By Christopher B. Daly 

Invoking journalism history, New York state’s highest court has ruled that under New York’s state constitution and the state’s version of a “shield law,” a journalist cannot be forced to divulge the identity of a confidential source — even if another U.S. state is trying to extract the information. The ruling, issued Tuesday, was a major victory for press freedom, and not just in New York. But it will have its greatest impact in New York, where so much of the news media operate, because now the highest court in that state has ruled that New York’s own laws grant complete immunity to journalists from any attempts to force them to reveal their sources. Since that court is the ultimate interpreter of the New York state constitution, it is a landmark.

It remains to be seen if a New York journalist can use this new ruling as a shield against federal prosecutors. Federal courts are not obligated to follow the New York state court ruling, of course, but any person who gains more rights under a state constitution or law does not forfeit those rights just because federal law has not caught up. The U.S. Constitution and federal laws establish legal minimums that must be afforded to all Americans, but they do not establish maximums. When it comes to our rights, federal law is a floor, not a ceiling.

Briefly, the case involves Jana Winter, a reporter for FoxNews.com. She went to Colorado in 2012 to report on the horrific mass shooting at a movie theater in Aurora. Expecting a media frenzy, the local Colorado court imposed a “gag order” — that is, a pre-trial order that tries to limit disclosures to the news media in advance of a trial. During the investigation into the crime, police got hold of a notebook that belonged to the suspect, James Holmes, which he had shared with his psychiatrist. Someone divulged the existence of the notebook to the reporter, along with a summary or description of its contents. Colorado authorities consider that a breach of the gag order, and they are stamping their feet to see who disobeyed. All the cops in Colorado say “it wasn’t me,” so the authorities are turning to the journalist and demanding that she rat out her source so they can punish that person. For that, they want to make her travel 2,000 miles to violate a promise she made to her source(s). If she stands firm and refuses to name names, she goes to jail. If she gives them up, she is ruined as a reporter, and the whole enterprise of news-gathering is undermined because all sources will doubt all reporters when they promise confidentiality. [Winter has absolutely no information that is exclusive to her and based on confidential sources that has any bearing on the commission of the crime itself. All she knows about is which Colorado cop (or cops) violated the gag order. Please.]

Many, many courts would rule against the journalist in these circumstances. Judges normally sympathize with their fellow judges and see things their way. Judges normally do not like to see anyone violate their rulings and get away with it. Judges like the idea that what they say, goes. All of which makes this ruling even more remarkable. It was a win-win: the court expanded legal protections for reporters, and it relied in part on a famous case involving an 18th-century partisan journalist to do so.

Here are versions by the New York Times (which should have put this on page 1, not inside the business section) The New Yorker, TVNewser, and Poynter. (Even Fox News had to come down on the side of press freedom in this case.)

Here is the text of the decision, written by Judge Victoria Graffeo. Among the stories I saw, only Poynter actually linked to the decision, which is disappointing — hey, people, there’s this thing called the Internet; let’s take advantage of it. Besides, the decision is well worth reading in full. It is a pro-freedom primer on the history of the freedom to gather news. Here are some key excerpts:

New York has a long tradition, with roots dating back to the colonial era, of providing the utmost protection of freedom of the press. Our recognition of the importance of safeguarding those who provide information as part of the newsgathering function can be traced to the case of “John Peter Zenger who . . . was prosecuted for publishing articles critical of the New York colonial Governor after he refused to disclose his source” (Matter of Beach v Shanley, 62 NY2d 241, 255 [1984] [Wachtler concurrence]). A jury comprised of colonial New Yorkers refused to convict Zenger — an action widely viewed as one of the first instances when the connection between the protection of anonymous sources and the maintenance of a free press was recognized in the new world. In acknowledging the critical role that the press would play in our democratic society, New York became a hospitable environment for journalists and other purveyors of the written word, leading the burgeoning publishing industry to establish a home in our state during the early years of our nation’s history.

That is an important point: New York did indeed become the nation’s media capital. I doubt that the New York State Constitution was much of a causal factor (compared to all the economic ones), but the fact that the industry is now centered in New York City means that many, many journalists enjoy the favored status granted by this new ruling. And the ruling holds that a New York-based journalist is protected by New York’s constitution even when he or she roams into another state or online to do reporting. What remains to be seen is what might happen when a New York-based journalist attempts to use the new ruling in the Winter case against a federal prosecutor who comes around with a subpoena seeking to force a journalist to name a confidential source in a federal investigation or trial.

Judge Graffeo wrote that the protections offered to journalists in New York are ancient, robust, and multiply determined.

To begin with, she wrote, there is the matter of common law. Before New York was even a state, the jury in the 1735 image-crown-zenger-tryal-pageseditious libel case against the printer John Peter Zenger  established through its not-guilty verdict that Zenger did not have to reveal the identity of the author of the offending article. The Zenger case is usually cited as a precedent for the idea that truth is a valid defense in libel cases, but if Judge Graffeo finds the germ of a “shield law” in there, so be it. (For more on Zenger, see “Covering America,” chap 1)

 

Later, New York citizens wrote and ratified a state constitution. It says, in part:

“Every citizen may freely speak, write and
publish his or her sentiments on all subjects
. . . and no law shall be passed to restrain
or abridge the liberty of speech or of the
press” (NY Const, art I, § 8).

In her reading, that language from 1831 constitutes a shield for journalists all by itself, saying it is more expansive than even the First Amendment to the U.S. Constitution and thus affords more protections to New Yorkers than other Americans enjoy under the First Amendment alone.

In addition, Graffeo cites New York state law. In 1970, the New York Legislature adopted a “shield law” that includes an absolute legal privilege for journalists who want to protect the identity of their confidential sources. She said that after considering the views of the likes of Walter Cronkite and Mike Wallace, the Legislature decided to throw its weight into the balance on the side of reporters. The relevant part of that law says:

no professional journalist or newscaster . . .
shall be adjudged in contempt by any court in
connection with any civil or criminal
proceeding . . . for refusing or failing to
disclose any news obtained or received in
confidence or the identity of the source of
any such news coming into such person’s
possession in the course of gathering or
obtaining news for publication

So, Judge Graffeo concludes, journalists in New York are protected by common law, constitutional law, and statutory law. Now, how hard was that? Why do so many judges fail to understand this reasoning? The ruling holds that all these sources of protection for journalists combine to provide evidence of a clear “public policy” in New York state to encourage the practice of journalism within its borders.

But Judge Graffeo was not finished. She noted that the testimony of the journalists that the New York legislators relied upon arose from another case — that of NYTimes reporter Earl Caldwell. In a footnote, she observed

The affidavits were prepared in connection with a motion
to quash a subpoena in a case that was pending when the Shield
Law was under consideration by the Legislature and which involved
an investigative reporter from the New York Times who was
subpoenaed by a Federal Grand Jury in California to testify
concerning knowledge he obtained about the Black Panther
organization. Two lower courts held that the First Amendment
protected the reporter from being compelled to reveal his sources
or disclose information provided to him in confidence, differing
only on whether the reporter could avoid appearing at the Grand
Jury altogether (Caldwell v United States, 434 F2d 1081 [9th Cir
1970] [reporter could not be compelled to appear at Grand Jury],
vacating 311 F Supp 358 [ND Cal 1970][although required to appear

Caldwell, left, with MLK in Memphis, 1968.

Caldwell, left, with MLK in Memphis, 1968.

at Grand Jury, reporter was entitled to protective order
precluding questioning concerning confidential sources or

information]). However, deciding the case with Branzburg v Hayes
(408 US 665 [1972]), the United States Supreme Court disagreed,
holding that the reporter could not rely on the First Amendment
to avoid appearing and giving evidence in response to a Grand
Jury subpoena.

That was a regrettable decision that journalists lost by an eyelash, only because five judges on the U.S. Supreme Court did not understand the U.S. Constitution as well as these New York judges understand the New York constitution. For more on Caldwell, see Covering America, chap 12. For more on the Supreme Court’s ruling, see earlier blog posts here and here.)

 

The new ruling also sends a message to prosecutors in all the other states: don’t bother going on fishing expeditions. If you send us requests to compel a New York journalist to appear in your state’s courts, those will be denied. The opinion says New York will not tolerate harassment of journalists by subpoenaing them to show up halfway across the country just to assert their immunity under the New York shield law. That would be terribly disruptive to their work. Just leave them alone, the court said. Quoting an earlier case, the ruling states:

“Journalists should be spending their time in newsrooms, not in courtrooms as participants in the litigation process”

It’s thrilling to read a judicial opinion written by a judge who actually understands the meaning of a free press and appreciates its value to society. It’s rare — and therefore, I suppose, all the more thrilling.

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Finally, a hat-tip to the judge, Victoria Graffeo, the former solicitor general for the state of New York who was appointed to the Court of Appeals by Republican Gov. George Pataki to a 14-year term in 2000. No liberal, Graffeo was expected to be a moderate conservative voice on that important bench. Labels aside, she gets credit for getting the point.

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Keller v. Greenwald debate: Reporting v. Advocacy

By Christopher B. Daly

Bill Keller, former executive editor of The New York Times and keeper of the flame of traditional reporting, has squared off with Glenn Greenwald, the journalist who disclosed the Snowden leaks and an avatar of advocacy, in a debate over the meaning and future of journalism. Their debate is well worth reading and contemplating. 

Here’s my take: they are actually talking past each other. Each participant represents a different definition of journalism and cannot fathom the other’s values. As I argue in my book, Covering America, they come from competing visions of the essence of journalism, each of which has a long record.

Keller stands squarely for the tradition of responsible, dispassionate, nonpartisan, factual reporting. This was articulated forcefully by Adolph Ochs, the great-grandfather of the current Times publisher, when he bought the Times in 1896. Keller seems to believe that this tradition is the only legitimate one and that all others represent a deformation or corruption of “real” journalism.

Greenwald stands squarely for the tradition of journalism that prizes journalism for its ability to change the world. This is the polemical, analytical, interpretive form of journalism that considers advocacy the essence of journalism. Practitioners like Greenwald often look down on the reporting tradition as a weak, hypocritical, trouble-avoiding compromise.

It may come as a surprise that the advocacy tradition is actually older (much older) than the reporting tradition. In America, the first newspaper launched in 1704, and for more than a century after that, most journalism in America was a fact-free zone of argument and advocacy carried out by the likes of Sam Adams and Tom Paine.

The first full-time reporter in America (the obscure figure George Wisner of the New York Sun– pgs 61-62 in Covering America) wasn’t hired until 1833, and it took decades to establish the idea that the proper contents of a newspaper were value-free “facts” gathered by non-partisan professionals.

Personally, I don’t think one tradition is inherently more virtuous or more valuable than the other. I admire the best in both worlds.

 

 

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Should the Internet be regulated?

By Christopher B. Daly 

And, if so, for whose benefit?

Those were some of the issues swirling in the U.S. Circuit Court of Appeals in Washington as lawyers argued over a case that could have far-reaching impacts on the future of Internet access and the Web.

On one side is the FCC, which is asserting that it has the power to regulate the Internet just as it regulates over forms of electronic communication like radio, TV, and telephone.

On the other side is Verizon, a major internet service provider (ISP), which says the FCC has never been granted that power by Congress and cannot just assert it because it wants to.

A major point of conflict: can ISPs be forced to treat all their customers the same when it comes to upload/download speeds, pricing, and the like? Or, are they free to devise their own pricing structures that penalize heavy users of bandwidth?

If the ISPs have that right, how would they use that power? Would they impose high rates on start-ups like Zipcar and end up thwarting innovation?

Here’s today’s version in the Times.

The takeaway:

Consumers could experience a significant change in the Internet if the United States Court of Appeals for the District of Columbia Circuit strikes down the F.C.C.’s requirement, called the Open Internet Order.

Currently, companies that offer goods or services online do not have to pay anything to get their content to consumers. If Internet service providers started charging fees to reach customers more quickly, large, wealthy companies like Google and Facebook would have an edge, the F.C.C. says. The government argued that such a tiered service could cause small, start-up companies with little money to pay for their access — the next Google orFacebook, perhaps — to wither on the vine.

In any case, the added costs would be likely to be passed on to consumers.

The case, which is expected to be decided late this year or early next year, has attracted enormous interest. On Monday, telecommunications lawyers began lining up to get into the courtroom two and a half hours before the session was scheduled to start. The session was standing room only, with many others left to listen in an adjacent overflow room.

To be continued. . .

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