Category Archives: media

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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Inside the Meme Factory: Hilary edition

By Christopher B. Daly 

Unlike some people, I enjoyed Ken Auletta’s recent piece in the New Yorker, which was ostensibly about Hilary Clinton’s problems with the news media. (Yes, Fox and the like: she has her problems with reporters, too.)  I don’t know whether is right about her media problems, and frankly, this far out from the election, I don’t give a hoot.

What I enjoyed in his piece was his swerve into the history of right-wing media and his documenting of what I call “the Meme Factory” — that interlocking directorate of conservative media, think tanks, and other institutions built since WWII with huge donations from the right. Auletta delves into the doings of Matthew Continetti — who is something of a third-generation of conservatives who have been building a parallel set of media institutions. (Continetti was mentored by Bill Kristol, who is, in turn, a direct descendant of one of the major builders of conservative media and think tanks of the 20th century, Irving Kristol.) Continetti founded a non-profit news operation called the Washington Free Beacon. (It’s like a normal DC-focused news website, but every article serves a conservative purpose.)

Hillary Clinton once famously complained that she and her husband were the targets of a “vast right-wing conspiracy.” That’s only half-true. There is a vast (and growing) network of right-wing institutions that are mutually reinforcing. Their existence is no accident. But it is a touch paranoid to refer to all those people and institutions as a “conspiracy.” They do not need to conspire to carry out their mission.

Clinton is also wide of the mark in another sense. While it is true that all of the people on the right hate her and her husband and strive unceasingly to destroy them, it is not true that they are her only problem. If Scaife and Murdoch and Limbaugh and the whole gang were to suddenly vanish, Hillary Clinton would not enjoy the glide into the White House that she may envision.

 

 

 

 

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NPR explains change at NYT

By Christopher B. Daly 

Hats off to NPR’s estimable media reporter, David Folkenflik, for a thorough, calm, balanced, well-reported piece about the recent succession crisis at the New York Times. What distinguishes Folkenflik’s work from a lot of what I have read is that it is based on original reporting. He conducted the first interview I’m aware of with the new executive editor, Dean Baquet, and his decision to seek out Amanda Bennett was smart. I was out of the country when the news broke about the dismissal of Jill Abramson (full disclosure: we went to college together long ago; actually, Amanda Bennett was there, too), so I refrained from saying anything about it after I got back. I read a lot of other people’s “work,” though, and found that most of it was armchair speculation, Monday-morning q’b-ing, and pure projection.  So, thanks to David F for actually expanding the universe of known facts, upon which the rest of us can get busy speculating.

(And thanks for helping us learn how to pronounce the new guy’s name! Sounds like “bah-KAY”)

Dean Baquet, the new executive editor of The New York Times Photo: Bill Haber/AP

Dean Baquet, the new executive editor of The New York Times
Photo: Bill Haber/AP

 

 

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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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Remembering a funny journalist: Art Buchwald

I am very pleased to have had the chance to write about Art Buchwald. I grew up reading Buchwald’s syndicated column in the pages of the Boston Globe, so I jumped when the online project American National Biography asked me to research his life and write about him.

[ANB is a publishing project in partnership with Oxford U Press, and I was hoping that they could include some illustrations, but they could not. So I am posting one of my favorites here at the top of this post.]

Enjoy.

From the cover of Buchwald's book "I'll Always Have Paris"

From the cover of Buchwald’s book “I’ll Always Have Paris”

Buchwald, Art (20 Oct. 1925-17 Jan. 2007), journalist and humorist, was born Arthur Buchwald in Mount Vernon, New York. His father, Joseph Buchwald, a Jewish immigrant from Austria, was a draper in New York City; his mother, Helen Klineberger, whom he never met, was placed in a mental hospital shortly after Arthur’s birth and remained institutionalized for the rest of her life. Arthur was the couple’s fourth child and only son.

Arthur endured a Dickensian childhood in New York City, spending his younger years in a series of foster homes coordinated by the Hebrew Orphan Asylum. His father, who spoke little English, struggled to provide for Arthur and his three sisters, often failing to keep the family together. As a boy, Arthur turned to humor to ward off the many blows life dealt him. “Laughter was the weapon I used for survival,” he wrote in his 1993 memoir, Leaving Home.

Arthur Buchwald attended New York City’s public schools and was a fair student, but he excelled in English and writing. Much of his real education took place in the city’s streets and subways, which he roamed while working at odd jobs as a young teen. One job involved clerking in the mailroom at Paramount Pictures. At age fifteen he was reunited with “Pop” and his sisters in an apartment in Forest Hills in the borough of Queens.

When the United States entered World War II the sixteen-year-old Buchwald attempted to enlist, but his father refused to sign the required papers. During the summer of 1942 Buchwald worked as a bellboy at the Mount Washington Hotel in New Hampshire, where he had his first serious encounter with anti-Semitism. In an effort to impress a girlfriend, he ran away to South Carolina and enlisted in the marines after plying an alcoholic man with a bottle of whiskey to forge his enlistment papers.

The marine corps was not an obvious choice for Buchwald, who was not much of a physical specimen and knew nothing about guns or fighting. He survived basic training and developed a loyalty to the corps, later calling it the best foster home he ever had. Buchwald served as a munitions loader during the island-hopping campaign in the Pacific, seeing duty at Eniwetok, Kwajalein, Engebi, and other islands and atolls. He was discharged without a scratch on 12 November 1945.

After the war Buchwald decided to take advantage of the G.I. Bill. He hitchhiked across the country and enrolled at the University of Southern California (USC). When it was discovered that he did not have a high school diploma, Buchwald was allowed to continue taking classes but denied the chance to earn a degree. He edited the USC campus humor magazine, the Wampus, and he wrote a humor column for the student newspaper, the Trojan. More than forty years later USC awarded Buchwald an honorary degree, and the dean of journalism bestowed his cowl.

In 1948, flush with a veteran’s bonus granted by the state of New York, Buchwald left Los Angeles. Although he spoke not a word of French, he headed for Paris, hoping to emulate the life of Ernest Hemingway and other writers. Following a brief stint as an assistant to a stringer for Variety, Buchwald talked his way into writing a column about the city’s nightlife for the Paris Herald Tribune, which was widely read by Americans visiting Europe. With no credentials of any sort, he wrote a column titled “Paris After Dark” about the city’s nightlife and also contributed restaurant and movie reviews. In his column Buchwald developed a distinctive style, based on his stance as a bemused Everyman, perplexed by French words and customs, willing to humiliate himself for a laugh. His struggles with the French language and culture (dogs in restaurants!) became a source of amusement to his fellow Americans. Buchwald’s work in Paris also allowed the former orphan to rub elbows with the international jet set, and he continued to mingle with the talented and powerful throughout his life.

While in Paris he talked the owners of the Herald Tribune into running his column in their flagship paper in New York. In addition the Washington Post and other U.S. papers–eventually numbering eighty-five–ran his Paris pieces during the 1950s. One of his most famous columns was an attempt to explain Thanksgiving to the French. In fractured Franglais, Buchwald introduced such characters as “Kilometres Deboutish” (Miles Standish) and the “Peaux-Rouges” (redskins). The column was reprinted every November for the rest of his career.

While working in Paris, Buchwald met an American woman, Ann McGarry of Warren, Pennsylvania. Despite their religious differences (he was Jewish, she was Catholic) they were married on 11 October 1952 in London at Westminster Cathedral. They later adopted three children and remained married for forty years until they separated in 1992.

In 1962 Buchwald returned to the United States to begin a new phase of his career, settling in Washington, D.C. Shortly afterward he suffered his first major bout of depression, resulting in hospitalization. Although Buchwald often tapped his own life for material, he wrote relatively little about depression. When he resumed writing his column, it was a great success. The number of papers carrying the Buchwald column, via the Los Angeles Times Syndicate, rose to more than 450 by the end of the decade.

One of his most notorious columns involved the disputed burning of a bra outside the Miss America beauty pageant in Atlantic City, New Jersey, in 1968. A gathering of feminists protested the pageant by throwing items associated with gender oppression into a “Freedom Trash Can” and burning them. Several bras were probably destroyed in this fashion, along with many other items. In his column of 12 September 1968, though, Buchwald fixated on the brassieres, giving rise to the popular image of feminists as “bra-burners.”

During the 1970s and 1980s Buchwald was in frequent demand as a commencement speaker, delivering humorous advice to graduates and their families. He won a Pulitzer Prize for Commentary in 1982, and in 1986 he was admitted to the American Academy and Institute of Arts and Letters. In these years Buchwald was instantly recognizable: a rounded figure with a cigar, dressed in loud clothes and zany hats. Buchwald also rarely turned down a chance to appear in costume. One of his favorites was a (large) bunny suit worn at Easter.

As in Paris, Buchwald continued to mingle with the celebrated, forging fast friendships with the Washington Postpublisher Katharine Graham and the editor Ben Bradlee, among many others. Two of his most celebrated friendships involved the author William Styron and the television journalist Mike Wallace. All three men summered on Martha’s Vineyard, and all three suffered serious mental depression; they were known as the “blues brothers.”

In the late 1980s Buchwald threw himself into a lawsuit that became a milestone in American entertainment law. Buchwald had sketched an idea for a movie involving an African potentate who is overthrown while visiting the United States, resulting in comic complications. The idea was sold to Paramount and eventually developed into the major motion picture Coming to America, starring Eddie Murphy. Buchwald sued the film studio for breach of contract on the grounds that the Murphy film was “based on” Buchwald’s idea. The trial, which lasted three years in California State court in Los Angeles, resulted in an examination of the methods that Hollywood studios used to compensate creative contributors to the movies, under which many were promised a fraction of “net profits” that mysteriously never materialized. In the end Buchwald was awarded $150,000.

After he celebrated his eightieth birthday in 2005, Buchwald’s health began deteriorating. A blood clot in his right foot required amputation, followed by kidney failure. Rejecting dialysis, Buchwald chose to enter a Washington hospice instead. There his condition stabilized, and he became known as the “Man Who Would Not Die.” He received a long line of visitors, disarming them with wisecracks and reminiscences. After five months he checked out and spent the summer on Martha’s Vineyard. He died at his son’s home in Washington the following January and he was buried in a cemetery on Martha’s Vineyard next to his wife; nearby are the graves of Styron and Wallace.

Buchwald was a much-beloved journalist, humorist, and syndicated newspaper columnist whose career spanned six prolific decades. A successor to Mark Twain and Will Rogers as a popular political satirist enjoyed by millions, Buchwald took on both major parties, skewering generations of Washington officeholders. Even in his final illness he depended on humor for survival. Before his death Buchwald created a “video obituary” with the New York Times in which he spoke directly to viewers, saying, “Hi. I’m Art Buchwald, and I just died. . . .”


Bibliography 

Buchwald published more than thirty books, including three memoirs: Leaving Home (1993), I’ll Always Have Paris(1996), and Too Soon to Say Goodbye (2006). Also of interest is Ann Buchwald, Seems Like Yesterday (1980). Pierce O’Donnell and Dennis McDougal, Fatal Subtraction: The Inside Story of Buchwald v. Paramount (1992), discusses Buchwald’s legal case against Paramount. For general background on the world of journalism see W. Joseph Campbell,Getting It Wrong: Ten of the Greatest Misreported Stories in American Journalism (2010); Katharine Graham, Katharine Graham’s Washington (2002); and Richard Kluger, The Paper: The Life and Death of the New York Herald Tribune (1986). Obituaries appeared in the Washington Post and New York Times, 19 Jan. 2007.

 

Christopher B. Daly


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http://www.anb.org/articles/16/16-03592.html;

American National Biography Online April 2014.
Access Date: Thu May 01 2014 13:26:29 GMT-0400 (EDT)
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Cellphone searches: Any First Amendment issues?

By Christopher B. Daly 

It’s bad enough that some of the justices on the Supreme Court who are considering whether to authorize police searches of suspects’ cellphones are pretty clueless about this ubiquitous piece of technology. What really concerns me is that none of the justices expressed any concern about the First Amendment. (Or at least if they did, none of their questions broke though into the media coverage of this week’s arguments.) All the attention was focused on the Fourth Amendment, which says:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


 

Now, don’t get me wrong. That is one fine amendment, and I don’t want to take anything away from its important safeguards. It says that police cannot just barge into your home or office and start grabbing documents. If they want to search your stuff, they have to get a warrant from a judge, and the warrant must “particularly describe” what the police expect to find.

When it comes to cellphones, there are no “papers” involved, but I think even this Supreme Court can figure out that a digital document like a text or a photo fits the meaning of what the Founders meant to protect.

Here’s where the First Amendment might enter the picture.

Consider this scenario:

A journalist is walking down the street and notices a political protest. She whips out her cellphone and uses it to make audio recordings of the natural sound as well as some interviews; she takes some photos; and she starts taking notes on the disturbance in the form of a draft email that she intends to send to herself and her editor later. Things heat up, and the police start beating protesters. Our journalist considers this newsworthy and begins taking close-up photos of police officers whaling away on protestors. A police officer orders her to stop. She refuses on First Amendment grounds and attempts to photograph his badge number and name tag. He slaps the cuffs on her and confiscates her cellphone.

What now?

Didn’t she have a First Amendment right to gather information and take photos in public? Doesn’t she have a First Amendment right to protect the identities of any confidential sources who are listed in her cellphone “contacts”? What if she has other photos, data, messages, texts and the like in her cellphone about stories in progress? Should the police, or the FBI, or the local prosecutor have the right to rummage through her cellphone without limits? Would she have a First Amendment right to remotely tell her cellphone to purge itself of all data? Would she then be committing the crime of destroying evidence, or would she be exercising her right to engage in news-gathering and dissemination?

Or, consider a second scenario:

A reporter is arrested on a DUI charge. (I know, most reporters can’t afford that much booze any more, but it could happen.) He fails a field sobriety test and the cuffs come out. Do the police have any business looking into the contents of his cellphone, since it has no bearing on the crime at issue?

Maybe if the justices on the high court used their cellphones a bit more often, they’d be more alert to these sorts of issues. Or maybe not. But I would bet that if they approve cellphone searches, something like one of these scenarios will occur pretty soon.

 

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Inside the meme factory: The Clintons figured this out long ago

By Christopher B. Daly

When Hilary Clinton complained back in 1995 of a “vast right-wing conspiracy” trying to bring down her husband, she was not wrong. In fact, she and her husband’s political advisers were onto something: the interlocking network of conservative institutions set up since WWII to American politics to the right. As the Clintons realized, the right-wing think tanks and the right-wing media were mutually supportive in their campaign to concoct conservative political themes and inject them into the mainstream media. (Whether this system qualifies as a “consipracy” is a fine point, but Hilary was right to be paranoid: people were out to get her.)

A new batch of disclosures from the Clinton presidential library lay out the Clintons’ grasp of this phenomenon, circa 1995. They rightly identified Richard Mellon Scaife as a major source of funding for both conservative think tanks and media.

Scroll down past the heading sheets for a fascinating glimpse inside this usually hidden world.

Screen Shot 2014-04-23 at 9.01.39 AM

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