Category Archives: Fox News
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.
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.
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.
Photo: Brian Ach/Associated Press Images for The Hollywood Reporter
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  [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 seditious 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
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 ), 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
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.
“To be a Fox journalist is a high honor, not a high crime.”
–Roger Ailes, chief executive of Fox News, in a memo to his staff.
Here’s the full text:
The recent news about the FBI’s seizure of the phone and email records of Fox News employees, including James Rosen, calls into question whether the federal government is meeting its constitutional obligation to preserve and protect a free press in the United States. We reject the government’s efforts to criminalize the pursuit of investigative journalism and falsely characterize a Fox News reporter to a Federal judge as a “co-conspirator” in a crime. I know how concerned you are because so many of you have asked me: why should the government make me afraid to use a work phone or email account to gather news or even call a friend or family member? Well, they shouldn’t have done it. The administration’s attempt to intimidate Fox News and its employees will not succeed and their excuses will stand neither the test of law, the test of decency, nor the test of time. We will not allow a climate of press intimidation, unseen since the McCarthy era, to frighten any of us away from the truth.I am proud of your tireless effort to report the news over the last 17 years. I stand with you, I support you and I thank you for your reporting with courageous optimism. Too many Americans fought and died to protect our unique American right of press freedom. We can’t and we won’t forget that. To be an American journalist is not only a great responsibility, but also a great honor. To be a Fox journalist is a high honor, not a high crime. Even this memo of support will cause some to demonize us and try to find irrelevant things to cause us to waver. We will not waver.
As Fox News employees, we sometimes are forced to stand alone, but even then when we know we are reporting what is true and what is right, we stand proud and fearless. Thank you for your hard work and all your efforts.
By Christopher B. Daly
It gives me no satisfaction to say that President Obama has been worse than disappointing when it comes to his treatment of journalists (and their sources) or his retreat from transparency (and thus accountability) in government.
It has to be said: The president has engaged in “a long train of abuses . . . pursuing invariably the same Object.”
The case against him is laid out in this open letter from whistleblowers, posted in the Guardian. This is the most comprehensive indictment I have seen to date.
In his lengthy speech yesterday about how he sees the war on terror, Obama threw in a brief passage near the end about the collateral damage that the war on terror is doing to the news media. It strikes me as too little, too late. Here it is:
The Justice Department’s investigation of national security leaks offers a recent example of the challenges involved in striking the right balance between our security and our open society. As Commander-in Chief, I believe we must keep information secret that protects our operations and our people in the field. To do so, we must enforce consequences for those who break the law and breach their commitment to protect classified information. But a free press is also essential for our democracy. I am troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.
Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law. That is why I have called on Congress to pass a media shield law to guard against government over-reach. I have raised these issues with the Attorney General, who shares my concern. So he has agreed to review existing Department of Justice guidelines governing investigations that involve reporters, and will convene a group of media organizations to hear their concerns as part of that review. And I have directed the Attorney General to report back to me by July 12th.
We’ll see what Eric Holder comes up with. But based on his record, I don’t expect much. So far, Holder has been part of the problem, not part of the solution.
By Christopher B. Daly
By approving or tolerating the abuses of power involved in the AP and Fox News cases, President Obama has positioned himself on the wrong side of the First Amendment. He is moving in the direction of making journalism a criminal activity.
For a former constitutional law professor, that is beyond disappointing.
For a politician who needs the press to govern, that is just stupid.
More evidence comes from the group Reporters Without Borders, an international journalism-advocacy group that supports press freedom in places like Morocco and Bahrain. Now, they feel the need to express concern about the state of press freedom in the United States, where the concept was born. Sheesh.
Also, don’t miss this comment from Ryan Lizza in The New Yorker.
Don’t miss this excellent piece by Glenn Greenwald, which ran recently in The Guardian. In it, Greenwald — a lawyer, journalist, and prize-winning author — carefully builds a case about what the Obama administration is doing. In short, he argues that the DoJ (with Obama’s certain knowledge) is taking steps to make it a crime to do many of the activities that constitute investigative journalism. The focus is the case involving Fox News’ James Rosen, but most of these thoughts apply to many other cases as well.
This is something that all journalists, all political progressives, and all Obama supporters need to grasp. The president is wrong on this, and his people are out of control.
Under US law, it is not illegal to publish classified information. That fact, along with the First Amendment’s guarantee of press freedoms, is what has prevented the US government from ever prosecuting journalists for reporting on what the US government does in secret. This newfound theory of the Obama DOJ – that a journalist can be guilty of crimes for “soliciting” the disclosure of classified information – is a means for circumventing those safeguards and criminalizing the act of investigative journalism itself. These latest revelations show that this is not just a theory but one put into practice, as the Obama DOJ submitted court documents accusing a journalist of committing crimes by doing this.
That same “solicitation” theory, as the New York Times reported back in 2011, is the one the Obama DOJ has been using to justify its ongoing criminal investigation of WikiLeaks and Julian Assange: that because Assange solicited or encouraged Manning to leak classified information, the US government can “charge [Assange] as a conspirator in the leak, not just as a passive recipient of the documents who then published them.”
By Christopher B. Daly
One of the most serious recent threats to press freedom is playing out in Colorado. It involves a reporter for FoxNews.com who is the target of a subpoena by a state prosecutor who is pursuing the case against the suspect in the 2012 mass shooting in Aurora, Colo.
At issue is some reporting done by Jana Winter, who is an investigative reporter at FoxNews.com. In a story labeled EXCLUSIVE, Winter quoted two sources (whom she did not name) telling her that the suspect, James Holmes, had mailed a notebook to a psychiatrist before the shooting. According to one of the sources cited in her story, the notebook was “full of details about how he was going to kill people.”
As so often happens, the prosecutors in Colorado would like to know the identity of her confidential sources. For solid professional reasons, the reporter does not want to divulge those names. (If she did, then all sources would be that much more reluctant to speak to reporters, and — here’s the punchline: the public would be less informed.)
As so often happens, the judge in the case would also like to know the identity of the sources, so he is threatening to hold Winter in contempt of court unless she rats out her sources. That means the judge could send her to prison for up to six months, or until she relents and gives up the names.
This is a classic case of prosecutorial and judicial abuse of power that threatens the public’s right to know. The Constitution’s First Amendment, which guarantees freedom of the press, exists for the benefit of the American people, not just the news business. The people have a right to know things, and it’s for that reason that government is restrained from interfering with news-gathering and news dissemination.
In cases like this, a “shield law” could protect the reporter from such pressure and threats. But a proper reading of the Constitution could serve just as well. In the rare cases where the use of confidential sources gets to the point where jail time is a real threat, most jurisdictions require that prosecutors meet a multi-prong test: the material being sought must be germane to the case, and it must be unavailable in any other way. This case hardly meets either standard. In the criminal case against Holmes, the question for the jury will be, did he kill all those people? Whether he sent a notebook to anyone in advance is irrelevant. (It might be relevant if the survivors of the shooting ever brought a civil suit against the psychiatrist, charging the psychiatrist with failure to warn — but that’s another matter entirely. And even then, the notebook is probably irrelevant, since the psychiatrist did not even open the package it was in until after the shooting.) In the criminal case, finding out Winter’s sources serves no purpose, and the subpoena should be quashed. The judge is probably irked that Winter’s sources violated his gag order in the case, but he never should have issued a gag order in the first place.
Of course, the suspect has rights under the same Constitution that protects the journalist. Holmes is entitled to a fair trial, which includes the right to face his accusers. But Winter’s sources are not his accusers and do not need to be dragged into this case. Holmes’ rights to a fair trial also include the right to be tried by an impartial jury — that is, one that is not inflamed by news reports about the case. But there again, the prosecutor and judge have no leg to stand on. Whether or not there was a notebook and whether Winter was told about it by this person or that person has no bearing on the state of mind of the jurors who will ultimately hear the case and decide Holmes’ fate. My suspicion is that the prosecutor and the judge just want to control all the parties in the case, and they are frustrated that they can’t do so.
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Recently, some people have complained that the liberal media have been slow to rally behind Winter because she works for the media empire of the despised conservative Rupert Murdoch. (According to the Times, she used to work for Murdoch’s New York Post before signing on as an investigative reporter for FoxNews.com, the website associated with Murdoch’s Fox News on cable television.) Today’s Times carried a news story and an op-ed about the case, so it hardly seems that the liberal Times is ignoring the case.
Some folks at Fox News seem to have a problem with the Constitution, especially when it comes to extending its protections to unpopular causes. But the beauty of the Constitution is that it exists for all of us, without exceptions. So to my colleagues at Fox News, I say welcome to the experience of being a frightened individual, hunted by the powers that be, despised and alone, hoping against hope that some clause in a document drafted in 1789 can save you from unwarranted punishment.
That’s why we have the Constitution, for everyone.
By Christopher B. Daly
Conservative media mogul Rupert Murdoch is not finished trying to acquire more news outlets, despite his unsavory legal problems.
His latest target is the L.A. Times, the paper that the conservative Otis and Chandler families used to spearhead the phenomenal growth of LA (and, not incidentally, their family own’s fortunes). A story in today’s NYTimes provides an update.
Here’s the situation: Like most big newspapers, the LATimes is in financial trouble, so its owner (the Tribune Co.) wants to sell it. One of the few buyers of newspapers is Rupert Murdoch.
Here’s the problem: Murdoch already owns two television station in Los Angeles, KTTV and KCOP. Like all holders of broadcast licenses in the United States, the two stations are subject to regulation by the Federal Communications Commission. Decades ago, the FCC idealistically promulgated rules that limit the ownership of tv and radio stations and that limit the “cross-ownership” of broadcast entities and newspapers in the same market. The idealistic impulse was to try to keep ownership diverse and prevent anyone from monopolizing the market for news and opinions in a given part of the country.
Here’s the wrinkle: Murdoch runs his News Corp. by basically using his many profitable broadcasting properties (starting with Fox TV) to subsidize his many money-losing newspapers (starting with the New York Post). His next step is to divide his company in two: a broadcasting division and a print division. If he pulls that off, he may be able to skirt the FCC rules.