Category Archives: broadcasting

The dinosaurs of old media still shake the earth

By Christopher B. Daly

Is all the coverage of Rupert Murdoch’s play for Time Warner a bit of an over-reaction?

The NYTimes, for example, cleared the decks and went all-in, devoting nearly a double truck of today’s Business section to coverage of an 83-year-old business mogul who wants to take over a 91-year-old media company.

Here’s a column/story by Boston University professor David Carr and more stories here, here, and here.

So, it turns out that Murdoch wants to own the company that is a distant relative of the company founded in 1923 by Henry Luce, one of the earliest of the modern media moguls. Luce created TIME magazine with his co-founder and frenemy Briton Hadden, and in its day, TIME was the cool new thing. Over the decades, Time Inc. added more magazines that became household names — Fortune, Life, SI, People, etc. As I wrote in my book Covering America, Luce used his midas touch with magazines to become a wielder of great influence in American politics, culture, business, and foreign policy. In the late 20th Century, Luce’s successors made a series of mergers and acquisitions that transformed a magazine publisher into a multimedia giant. More recently, the company’s executives decided to spin off the print properties, leaving Time Warner as a company with a desirable core of television and film content-makers. That’s what Murdoch wants.

Murdoch himself went through a similar process of corporate cell division last year, dividing his News Corp. into separate print and video divisions. He is using his profitable new company, 21st Century Fox, to gobble up Time Warner. If he succeeds, as he might, it would also represent the final victory of 20th Century Fox movie studios founder Daryl F. Zanuck over his great Hollywood rival, Jack Warner. (Ironically, Zanuck learned the business at Warner Bros., making his bones with “Rin Tin Tin” but left after creative differences with Jack Warner over the making of “Baby Face.”)

It’s hard to find anyone to root for in all this.

220px-Baby_Face_1933_film_poster

 

 

 

 

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A pox on “A pox on both their houses”

By Christopher B. Daly 

I spend a lot of my waking hours at the intersection of Journalism and History, two empirical fields that share a lot of DNA. It’s an interesting place to hang out, and I wish more of the residents of each street would roam around more on the other street.

Today, a story in TPM about an item on a blog known as the 20Committee, nicely frames an issue that highlights one of the distinctions between the disciplines of journalism and history. The upshot is that journalists do us all a disservice when, in the name of non-partisanship or “fairness,” they throw up their hands and blame Democrats and Republicans equally for behaving in ways that are partisan, counter-productive, hypocritical or the like. As a former political journalist myself, I know this phenomenon well, and I know where it comes from: it is an adaptation to the pressure many American journalists feel to write as if they have no stake in the outcome, to show an aloof indifference to cause or candidate or party.

Many journalists, particularly in the mainstream media who work in the reporting tradition, apply this technique to coverage of hard problems like Obamacare or fracking or political spending. This is the problem often referred to as “false equivalence” or “false balance.”

But, I would submit, no historian who studies our current period in the future would be caught dead doing that. Every historian of our present situation will look at essentially the same facts and will exercise judgment.

[I will further predict that 95 percent of them will conclude that our current messes are the fault of Republicans. But, to use another favorite journalistic evasion, Only time will tell.]

Shutterstock/ Christos Georghiou

Shutterstock/
Christos Georghiou

 

 

 

 

 

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Reporting on autism: wrong or dumb?

By Christopher B. Daly

What does it mean that the two sides of this graphic are so out of whack?

Screen Shot 2014-03-30 at 3.01.00 PM

What it shows (according to Princeton prof. Sam Wang, in an article in today’s NYTimes Sunday Review) is that journalists way over-report the wrong things about autism. Whereas most articles are about vaccines, the science suggests that most autism is a product of genes and/or prenatal and very early stresses on mother and child. Hmmm…..

I had never even heard about “injury to the cerebellum at birth,” which turns out to be a major added-risk factor. How are we supposed to understand issues like this and — god forbid! — formulate public policy when journalists present such a distorted view of the science?

Sheesh.

 

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O’Reilly on O’Reilly

By Christopher B. Daly

Not to be missed: this recent commentary by Tim Egan in the NYTimes about Fox News figure Bill O’Reilly and O’Reilly’s recent interview with President Obama. As usual, O’Reilly believes that the key figure in the interview was . . . himself. For days afterward, O’Reilly and his colleagues at Fox milked the interview and scored it a solid win for O’Reilly over the president (as if it were a debate).

Egan makes a good point here:

So, the first point for historians sniffing the odor of O’Reilly’s time capsule in 2114 is that the interview made no news. No ground was broken. It was a journalistic dud. O’Reilly himself spoke for about 40 percent of the time, and devoted 90 percent of the interview to “the full Fox scandal grab bag,” as Jon Stewart called it.

As it happens, I am teaching my students this week about how to conduct interviews in my journalism classes at Boston University (where, yes, I know: Bill O’Reilly attended college). The point I always try to drum into my students about interviewing is simple: It’s not about you. 

Of course, I understand that Bill O’Reilly is not trying to conduct a productive, journalistic interview. He is trying to stage a clash of personalities for television. Like his boss Roger Ailes, O’Reilly is very good at understanding television, even if he seems to have missed class on the day of the lesson about humility.

 

 

 

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Fox News: is bad news worse than no news at all?

Here is a graphic from a NYTimes op-ed  distilling a 2012 study conducted by researchers in the PublicMind project at Fairleigh Dickinson University. 

No comment.

25blow-ch-master180

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Roger Ailes revisited

By Christopher B. Daly 

With the release of Gabriel Sherman’s new book about Fox News boss Roger Ailes, there is a lot of commentary about Ailes.

Here’s David Carr. Here’s TNR.

Amid all the commentary and analysis, it’s important to keep some sense of perspective. Fox News reaches a maximum of about 3 million different Americans in a typical day. That’s less than 1% of the population. And the ratings for Fox News are no longer climbing; they appear to have topped out. Not only that, but the Fox News audience is considerably older than the ideal “demographic” for television viewing. (Not to mention that the Fox News audience is whiter than average and much more conservative.)

In other words, it’s unlikely that Roger Ailes is the king-maker in national politics that he would like to be (and to be seen as). More and more, it appears that his television channel preaches to the (aging) choir.

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New biography of Roger Ailes

By Christopher B. Daly 

Looking forward to reading the new biography of Roger Ailes, the driving force behind Fox News, by Gabriel Sherman. It sounds like this is the one worth waiting for, rather than the earlier version published last year by Zev Chafets, which had Ailes’ cooperation (which can only mean one thing).

Sherman, a contributing editor at New York mag (and Newton, Mass. native), has been working on this book for years, and he certainly has the journalistic credentials to pull it off.

Today’s story in the Times features this quote from Ailes:

“I want to elect the next president.”

As if that were a shocking ambition for a news executive. The same could have been said of Benjamin Bache at the Philadelphia Aurora in the election of 1796 or of Henry Raymond of the The New-York Daily Times (as it was originally known) in 1856 or William Randolph Hearst every year from 1896 to his death in 1951. American publishers and broadcasters have usually seen themselves as king-makers (it not candidates, a la Hearst). It appears to be one of the major appeals of the job.

Another curious passage from today’s story:

Last year, lawyers from Fox News met with lawyers from Random House to discuss Mr. Sherman’s book. Fox requested the meeting because it had heard about allegations that might be in the book that it said were inaccurate, and to emphasize that the book had not been fact-checked by Fox News.

Well, why would the book be “fact-checked by Fox News”? It should be fact-checked by its own publisher, Random House, not the subject. Isn’t that the essence of editorial responsibility? Sheesh.

Fun fact: Ailes is quoted as calling Bill O'Reilly "a book salesman with a TV show."

Fun fact: Ailes is quoted as calling Bill O’Reilly “a book salesman with a TV show.”

Photo: Brian Ach/Associated Press Images for The Hollywood Reporter

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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.

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Bring cameras into court

By Christopher B. Daly

Hard to believe, but most federal courts and all military courts remain closed to cameras. That means that you and I — in other words, The People — cannot observe what’s going on in the judicial branch.

Here are some reflections on closing the Gitmo trials to cameras.

How can this possibly look to the rest of the world? Does it signal that the high-tech United States relies on pastels to communicate? Does it signal that the big, strong America is afraid of something?

The sketch artists do a great job under trying circumstances, and I would hope that they would always be welcome in courtrooms. But let’s get a video camera in there, too.

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Sheesh.

 

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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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