Monthly Archives: December 2013

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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Dasani’s story — a team effort

By Christopher B. Daly 

By now, most readers of the NYTimes have discovered Dasani, the remarkable girl whose story epitomizes the plight of the 22,000+ homeless in New York City. Kudos to investigative reporter Andrea Elliott and photographer Ruth Fremson.

BTW, the online version has extras. Although the series “Reasons to Dream” did not get the full TimesSnow Fall” treatment, it still looks better online. There are big, gorgeous, poignant, full-color pictures of

Dasani at play. NYT/Ruth Fremson

Dasani at play.
NYT/Ruth Fremson

Dasani and her world, and some videos too.

But not to be missed is this: The full credits at the bottom of the last installment indicate how much institutional heft counts in a series like this.

Here is a brief summary of how they went about it:


Andrea Elliott, an investigative reporter with The New York Times, began following Dasani and her family in September 2012. The series is written in the present tense, based on real-time reporting by Ms. Elliott and Ruth Fremson, a photographer with The Times, both of whom used audio and video tools.

Throughout the year, Dasani’s family also documented their lives in video dispatches from the Auburn Family Residence, which does not allow visitors beyond the lobby. Ms. Elliott and Ms. Fremson gained access to the shelter to record conditions there.

The reporting also drew from court documents, city and state inspection reports, police records, the family’s case files at city agencies and dozens of interviews with shelter residents. Most scenes were reported firsthand; others were reconstructed based on interviews and video and audio recordings.

The Times is withholding the last names of Dasani and her siblings to protect their identities. The nicknames of some of Dasani’s siblings are used in place of their birth names.


And here is a long list of people who pitched in:


By Andrea Elliott
Photographs by Ruth Fremson

Design, graphics and production by Troy Griggs, Jon Huang, Meghan Louttit, Jacky Myint, John Niedermeyer, David Nolen, Graham Roberts, Mark Suppes, Archie Tse, Tim Wallace and Josh Williams.

Reporting was contributed by Rebecca R. Ruiz, Joseph Goldstein and Ruth Fremson, and research by Ms. Ruiz, Joseph Burgess, Alain Delaquérière and Ramsey Merritt.


By my count, that’s 18 people — not to mention all the editors who had a hand (who should also be credited/held accountable). And, of course, Andrea Elliott has done basically nothing else for 15 months — so that in itself is a big commitment.

Plus, the Times is providing the “source notes” (like scholarly footnotes) so that others can confirm or pursue further info. This is a model practice for many other stories.

That’s how it’s done.



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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 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.

0      0       0       0       0       0


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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Surveillance state: Private sector discovers privacy

By Christopher B. Daly 

Now comes a campaign from a coalition of high-tech companies who want the government to get out of the business of routinely spying on Americans in peacetime. They are organized under the banner of (What’s the matter? Was the domain name EndGovernmentSurveillance taken?).

The founders include the biggest names in tech and social media in America: 

AOL (maybe I buried the lead: are they still in business?)








According to a full-page ad in today’s NYTimes, the coalition members want the president and Congress to put an end to abuses carried out in the name of national security by the NSA and other government agencies. That’s great as far as it goes, and I welcome them to the movement to control the government.

While they are at it, though, those same companies would do well to honor their own customers‘ privacy and quit trying to pry more data and pics out of us to exploit for gain. Set a good example.


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Hey, Midwest: Keep your stinkin’ pollution!

By Christopher B. Daly

Those of us who live downwind of the Rust Belt states have been breathing their fumes since the early days of the Industrial Revolution. We have done a pretty good job (I know, I know: we have a ways to go) to clean up our own skies. Here in Massachusetts, we have a mix of nuclear, fossil-fuel, and alternative energies, and we have a comparatively high-tech economy that does not depend on digging up long-dead plants and dinosaurs and burning the carbonic residue. So, the last thing we want to do is have our skies polluted by your fossil-fuel plants.

Now, eight Northeast governors are asking the EPA to do its duty and actually protect the environment by cracking down on the Midwest sources of pollution. From the Times:

The East Coast states. . . have for more than 15 years been subject to stricter air pollution requirements than many other parts of the country. Their governors have long criticized the Appalachian and Rust Belt states, including Ohio, Kentucky and Michigan, for their more lenient rules on pollution from coal-fired power plants, factories and tailpipes — allowing those economies to profit from cheap energy while their belched soot and smog are carried on the prevailing winds that blow across the United States.

And, Midwesterners — While you are cleaning up your act, please do me a favor: Tell your industry trade groups to stop buying time on television to sell me on the virtues of “clean coal.” There is no such thing as clean coal and never will be.

Let’s grow up and move on. Don’t waste your time trying to cling to fossil fuels. The sooner you give them up, the better off you’ll be — not to mention everyone downwind.

Cough, cough! NYT

Cough, cough!

That is a power plant cooling tower in Kentucky. Below is a photo I took outside Xian, China, last spring. Believe me, we really do not want to sink to their level. The way to out-compete China is to pull away in terms of cleanliness, not dirtiness. (This was not a stormy day, either. Just another day in China.)

Cough, cough! Chris Daly

Cough, cough!
(Chris Daly)


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What China really fears: a free press

By Christopher B. Daly 

[Update: TNR weighs in with a piece stressing the perils of self-censorship.]

Through their statements and actions, the leaders of China are showing their true colors. For all their talk about moving toward a more modern, open, accountable society, China’s leaders refuse to budge on one issue. Their policies indicate that what they fear above all — even more than U.S. fighter jets cruising through contested air space — is a free press. Specifically, they fear a U.S.-style press that insists on afflicting the powerful by investigating them.

The evidence is in the Chinese handling of recent revelations by reporters for the New York Times and Bloomberg. American journalists who cover China have made dramatic disclosures about how the families who hold power in China manage to use that power to enrich themselves personally. The bar for this kind of reporting was set by David Barboza of the Times (and a Boston University alumnus, BTW), whose series “The Princelings” won a Pulitzer Prize earlier this year.

The Chinese reaction was characteristically blunt: the government in Beijing pulled the plug on the NYTimes in China, banning the print and electronic editions. Now the government is dragging its heels on renewing the visas that journalists like Barboza need to stay in the country and continue their work.

Here is a quote from a Chinese Foreign Ministry official that captures the issue perfectly:

“As for foreign correspondents’ living and working environments in China, I think as long as you hold an objective and impartial attitude, you will arrive at the right conclusion.”

What this reveals is an outlook that holds that there is a “right conclusion” — which is determined by the Communist Party — and that the task of journalists is to discern the party’s views and stick to them. In other words, don’t rock the boat.

The issue is such an irritant between the U.S. and China that vice president Joe Biden put it on the agenda during his visit to China this week. From today’s NYT version:

Vice President Joseph R. Biden Jr. raised the issue here in meetings with President Xi Jinping and other top Chinese leaders, and then publicly chastised the Chinese on Thursday for refusing to say if they will renew the visas of correspondents and for blocking the websites of American-based news media.Chinese President Xi Jinping shakes hands with U.S. Vice President Joe Biden inside the Great Hall of the People in Beijing

“Innovation thrives where people breathe freely, speak freely, are able to challenge orthodoxy, where newspapers can report the truth without fear of consequences,” Mr. Biden said in a speech to an American business group.

At a meeting on Thursday with Beijing-based reporters from The New York Times and Bloomberg, Mr. Biden said that he warned Chinese leaders, in a formal session and over dinner, that there would be consequences for China, especially in the Congress, if it forced out the journalists. But he said Mr. Xi appeared unmoved, insisting that the authorities treated reporters according to Chinese law.

If only the U.S. had some good options for pressuring the Chinese. We could exclude Chinese journalists from working in the United States, but that’s a terrible idea. We do not want to sink to the level of unprincipled tactics used by the Chinese, and we want to encourage more coverage of America in China, not less.

I don’t have a great answer here, except for patience. It is an article of faith with me that the truth will out and that in the long run, the power of the press will win out. Besides, I have one other reason for optimism: I teach a lot of young Chinese students about American journalism — its history, its principles, its techniques. Most of them go back to China, and when they return they bring some lessons they are unlikely to unlearn.


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Can we ever catch up to Shanghai?

That’s one question that could be asked about the latest round of global testing of 15-year-olds. This Boston Globe graphic makes it easy to see where we stand. (If you believe in testing.)


Kids from Massachusetts may be in striking distance, but that US average is not all that impressive. Try chanting this: We’re Number 30!

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The power of narrative: NPR tells the tale of a T-shirt

A hat-tip to the talented team at NPR’s “Planet Money.” They are spinning a yarn this week about how a T-shirt is made, from start to finish. Best of all, they decided to actually make a specific T-shirt of their own, and reporters worldwide are contributing to a narrative that traces the arc of that T-shirt from the cotton fields of the Deep South to a robotic yarn-spinning factory in Indonesia and god-knows-where next.

Great idea, great sound, intelligent reporting. Way to go.


Read. Listen. Enjoy.



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Surveillance state: Why it’s wrong

Here is a letter to the NYTimes from someone I have probably never agreed with before about anything. But it points up some of our universal interests as citizens of a free country.

The National Security Agency’s indiscriminate surveillance of American citizens contradicts the Constitution’s moral cornerstones: It is better to be the victim of injustice than to be complicit in it; we knowingly take risks under the Fourth Amendment to avoid injuring the innocent; the right to be left alone is the most cherished right among civilized peoples; and every citizen is crowned with a strong presumption of loyalty and love of country. When these cornerstones are chronically flouted, liberty withers and dies.

Washington, Nov. 26, 2013

The writer, a former associate deputy attorney general in the Reagan administration, is the author of “American Empire Before the Fall.”


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New York mag cuts back on print edition

By Christopher B. Daly 

[Update: Here is a glass-half-full response to Carr, which I think makes a lot of sense.]

David Carr uses his NYTimes “Media Equation” column today to describe the changes going on at New York magazine under its phenomenally successful current editor, Adam Moss. The magazine is scaling back its print version from nearly weekly now to

“You can’t help but get wistful about it,” said Adam Moss, the editor in chief of New York. Photo: Fred R. Conrad/NYT

“You can’t help but get wistful about it,” said Adam Moss, the editor in chief of New York.
Photo: Fred R. Conrad/NYT

every other week. The culprit: the high cost of printing and distribution versus the dropping value of print advertising.

The good news: the printing cutback is being done in service of strengthening the online version, which is the magazine’s future.

Meanwhile, New York is actually thriving by some measures: the website is going gangbusters and is considered must reading among younger “readers” in Manhattan and Brooklyn (as well as aspirational districts around the rest of the world).

As a supplement to Carr’s column, I am offering a couple of excerpts from my book Covering America that touch on the early days of New York, under its founding editor, Clay Felker:

. . . Another reason for the success of the New Journalism was institutional. Like the innovators of any new creative movement, the practitioners of this hybrid form of journalism needed patrons. They did not find them among the lords of the newsroom, the editors of America’s daily newspapers, who mostly thought these writers had lost their bearings (and maybe their sanity). Instead the New Journalists found sympathy, encouragement, expense accounts, and pretty good pay at a handful of magazines with extraordinary editors. One of the most influential was Clay Felker, who edited the Sunday supplement published by the Herald Tribune. It was an incubator for the talents of the young Tom Wolfe and a columnist named Jimmy Breslin. Felker, who had previously worked at Esquire, stayed at the Trib, cultivating good new writers—such as Gloria Steinem—wherever he could find them, until the newspaper folded in 1967. Then he took the nameplate of the Trib’s Sunday magazine, New York, and turned it into the prototype “city magazine.” In the early days, New York magazine also served as one of the unofficial headquarters of the New Journalism. A second clubhouse was not far away in Manhattan, at the offices of Esquire magazine. Under editor Harold Hayes, Esquire published many of the foundational pieces of the New Journalism, including Norman Mailer’s 1960 meditation on JFK, “Superman Comes to the Supermart,” and Gay Talese’s famous profiles of Joe DiMaggio and Frank Sinatra. Elsewhere in Manhattan, literary agents and editors at book publishing houses were starting to talk to some of these hotshot young writers, and some of those journalists quit their newspaper jobs to become full-time writers. . . 

Here’s another excerpt, about Felker and Gloria Steinem:

. . . One of the most prominent and influential women who changed the perception of feminism was a journalist and political activist who helped found a magazine that captured the new zeitgeist—Gloria Steinem. With obvious talent, intelligence, and (as was always remarked) good looks, Steinem became a highly visible figure who helped to lead both a magazine and a movement.

After a difficult childhood in Toledo, where she saw firsthand the vulnerability of women in traditional roles after her father left her mother, Steinem went to Smith College. Following her graduation in 1956, she traveled around India before landing in New York City, where she began to work as a freelance magazine writer. She worked hard and took all kinds of assignments. In an effort worthy of Nellie Bly, Steinem even went undercover for an article about working as a Playboy bunny. She thrived as a freelance writer, and she became a rising star. But still, as a “girl reporter,” she knew there were limits. (The low point: a piece for the New York Times magazine about textured stockings.) Over the course of the decade, even as she kept writing, Steinem became an activist in the civil rights, antiwar, and farm workers’ movements.

She found a congenial base at New York magazine, where editor Clay Felker allowed Steinem to tackle bigger and better assignments. Eventually she wrote the magazine’s “City Politic” column, which meant she was covering national politics and all the major issues. She liked Felker, and he advanced her career immeasurably, but in the end they came to an impasse: he was interested in pro-feminist articles only if they were paired with articles from an opposing point of view. “That’s why I gradually stopped writing for New York,” Steinem later explained. “It was just too painful to be only able to do it in the context of two women fighting.” . . .

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