Category Archives: Supreme Court

Shameless self-promotion (Journalism history division)

By Christopher B. Daly

Finally, it’s here: the electronic version of my book about the history of U.S. journalism, Covering America.

Just in time for the anniversary of the rollout of the hardback, this prize-winning book is now available in all major formats:

Nook,

Kindle,

Apple iBook, (This is the format I am checking it out on, and it looks great.)

Google Play,

you name it.

I am very pleased because I know that some folks have been waiting for the e-book. These formats make the book quite a bit cheaper and dramatically lighter! For people who don’t feel drawn to the ~$50 hardcover, here’s your chance to read Covering America. The book won the 2012 Prose Award for Media and Cultural Studies, and it has been selling well and drawing rave reviews (except for one stinker on Amazon — sheesh).

Enjoy it, and write to me about your reactions. You can comment here, or email me: chrisdaly44@gmail.com

CA cover final

 

 

 

 

 

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Filed under broadcasting, CNN, Covering America, David Halberstam, FCC, First Amendment, Fox News, history, Huffington Post, Journalism, journalism history, leaks, Murdoch scandal, New York Times, NPR, Photography, Photojournalism, Politics, publishing, Supreme Court, The New Yorker

Citizens United meets “Breaking Bad”

By Christopher B. Daly 

Now comes news that certain people have

1. created an organization that meets the technical definition of the kind of non-profit that can funnel unlimited amounts of money into U.S. politics without having to identify the donors.

2. perhaps (according to documents found in a meth house in Montana, fer chrissake) skirted the legal requirement that they steadfastly avoid coordination of their efforts with any actual politicians.

Hmmm…. does that seem: surprising? shocking? dismaying? inevitable? All of the preceeding?

I would say that ever since the U.S. Supreme Court’s profoundly wrong ruling in the 2010 Citizens United case, this kind of thing was entirely predictable. (All except the meth house; that is a nice touch.) In brief: the story involves a conservative group opposed to clean energy is organized into something called the American Tradition Partnership. According to news accounts and Montana election officials, ATP may have violated campaign finance laws, based on documents found in the meth house.

For the full story, watch Frontline tonight on PBS (before public broadcasting’s enemies destroy it), or read about it at ProPublica. You can also follow it in the pages of the Missoulian, a newspaper based in Missoula, Montana, which (luckily!) still maintains a bureau in the state capital of Helena trying to keep an eye on government and politics. A hat tip to Mike Dennison of the Missoulian — and keep up the good work. Or, check out the coverage in the Billings Gazette.

p.s. Don’t miss this handy interactive info-graphic from ProPublica, which shows who is giving what amounts to which causes.

p.p.s. Memo to the conservative SCOTUS bloc: thanks a lot.

 

 

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“Wait, wait”: Would someone please impose an embargo on the news media

By Christopher B. Daly 

Kudos to the SCOTUSblog for this remarkable tick-tock on what went wrong in the initial reporting about the Supreme Court ruling on the Obama health care plan back on June 28. Tom Goldstein, the publisher of SCOTUSblog, has put together a 7,000-word reconstruction of the first half hour of reporting, focusing on the screw-ups  at CNN and Fox News. He has done us all a service with his meticulous, minute-by-minute (and sometimes second-by-second) narrative of that day’s hits, balks, run-downs, and errors.

What this post-game review suggests to me is that, first and foremost, the news business needs to do better. As a former wire service reporter (10 years with the AP, both on desks and in the field), I appreciate the need for speed. SCOTUS decisions move markets; they sometimes hand the White House to one party over the other. Often, they are the epitome of breaking news. That said, it is insane for reporters to cover Supreme Court opinions on the fly. No one benefits. In Goldstein’s tick-tock, the description of the gyrations of the front-line legal correspondents reminds me of nothing so much as an episode of “Iron Chef” — in which highly talented people are subjected to insanely artificial difficulties (“OK, now you have two minutes to make a three-course meal out of kale and strawberries. GO!”). There is absolutely no reason to turn this scheduled event into a speed-reading contest.

The Supreme Court also has some lessons to learn. It is insane that the Court does not post its opinions, in full, on the Web at 10:00:01. Why should the White House and Congress have to wait? Why should citizens have to wait? Why should prisoners facing execution or stock traders or anyone have to wait? In this day and age, to hand out paper decisions is an affront.

But most important of all, after reading Goldstein’s report, I am strengthened in my belief that the Court and the news business need to get together on a slow day and figure out a better system for these kind of hand-offs. The answer is staring them in the face: an old-fashioned news embargo. The Court could simply identify 10-20 of the top court reporters — all vetted, credentialed experts — and invite them to come to the building at 8 a.m. The journalists could all then be locked in a room (like jurors) with no wi-fi access. They could then take their time to read the opinion (in full), digest it, and craft a coherent and accurate story. At 10:00, those stories could all be released, all at once. That way, all the news organizations that care about speed would have a multi-way tie and the issue of who was “first” would be moot. That way, the first version would also be the right version. That way, the public gets a full, careful, accurate version at the earliest possible moment.

P.S.: The world would certainly be a better place if people would stop posting comments just to gloat. Goldstein mentions a couple of these kind of comments that SCOTUSblog received from readers rubbing it in that CNN and Fox were right and SCOTUSblog was wrong. In retrospect, they look like the doofuses they are.

Twitter postings / Topsy

Twitter postings / Topsy

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Journalism 101: Read the whole opinion

By Christopher B. Daly

It comes down to this: two major news organizations (CNN and Fox News) blew their initial coverage of the most important Supreme Court ruling this decade. They did so because reporters at both cable news outlets made a rookie mistake by generating headlines without reading the whole SCOTUS opinion. In these situations, reporters often face an apparent dilemma: Do you want to be first? Do you want to be right?

The answer, of course, is that a conscientious reporter should want to be the first one who is also right.

And, just so I don’t let anyone else off the hook, this message needs to be embraced and shared by editors, desk people, and top management. The message has to be sent early, often, and unambiguously.

How do I know?

Aren’t I just a professor, safely watching this from the sidelines?

Well, yes and no. I worked for almost five years in a news cockpit, covering the state government of Massachusetts for the AP. In that role, one of my duties was to read the opinions of the Massachusetts Supreme Judicial Court (the SJC, the oldest continuously sitting court in the English-speaking New World, older than SCOTUS). When those opinions were newsworthy, as they often were, I had to bang out an immediate hard-news lead. Directly across the room from me in the Statehouse Press Gallery, my competitors at UPI were doing the same thing. We could tell from the sound of our typing who was writing and who was finished and had transmitted the story. The stakes were not as high as they were on Thursday at SCOTUS, but covering the SJC is essentially the same challenge.

So, here are my takeaways from the health-care bulletin fiasco:

–News organizations need “beat” reporters. That is, they need reporters who specialize in an area (health care, let’s say, or covering the Supreme Court) and become experts in it. General-assignment reporters (and god love ’em, we need them too) cannot be thrown at every new situation and expected to learn on the fly.

–The Supreme Court should re-institute the “embargo” system. An embargo occurs when the news media are given material in advance, on condition that they agree to withhold it until a specific time. When that agreed-upon moment arrives, the journalists are all released from their promise and can all disseminate the news at the same time. That system has several advantages. It means that reporters are quarantined for a period of time that they can use to their benefit — they can read the whole opinion, maybe more than once; they can check their notes and background materials; they can even call experts for analysis and comment. They can use the time to craft a story that is accurate and complete, knowing that no other news organization that participated in the embargo is going to scoop them. Granted, it is not natural for a news professional to endorse any system that delays the delivery of news. But the reason we sometimes accept embargoes is that they ultimately serve the best interest of our audiences, which is what we should care about the most.

–We need bloggers too. A delicious irony from Thursday is that two big-deal professional news organizations (yes, I am lumping Fox News in here, arguendo) discovered their mistake in part by reading a blog! The highly regarded SCOTUSblog got the story right and prompted part of the correction process. So, let’s give a hat tip to the power of a small group of experts using the Web to communicate.

(And a special salute to Lyle Denniston of SCOTUSblog, seen at right. Talk about beat reporters! He has been covering the Supreme Court for 54 years, or far longer than any of the current justices has served.)

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A throwback?

By Christopher B. Daly

The U.S. Supreme Court has ruled that two broadcasters who aired material that was arguably indecent can get off on a technicality. The court ruled yesterday that the FCC, which regulates broadcasting (because broadcasting uses the electromagnetic spectrum, which we all own, collectively), did not give the broadcasters sufficient notice.

The real question is this: what the heck is the FCC still doing trying to regulate the content of television? That is a question that SCOTUS apparently decided to sidestep in the latest case.

Since Congress created the fore-runner to the FCC in 1927, the FCC has been overseeing radio, television, and other communications that use the public’s airwaves.  Leaving the merits of their decisions aside, is there any rationale for FCC interference in what can be shown on cable television (which does not use the airwaves and relies instead on entirely private property)?

The landmark case in this area remains FCC v. Pacifica — the one involving the late comedian George Carlin’s famous “seven words you can’t say on radio” skit.

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Watergate: Lessons learned and un-learned

By Christopher B. Daly

The Boston Globe’s estimable, veteran political reporter Brian Mooney has a front-page story addressing the question: what has happened to the “Watergate reforms” in the 40 years since the Watergate break-in that began the fall of Republican President Richard Nixon.

Turns out, one of the great post-Watergate reforms — the public financing of elections — is all but dead.

Not only that, but the larger trend of political changes in recent years mark a move away from the lessons learned in Watergate.

One lesson was that power corrupts. Therefore, the power that comes from making big donations to a politician was limited by the caps placed on individual giving. The Supreme Court, however, decided to get rich people back into the business of financing elections, through the Citizens United ruling.

Another lesson was that sunlight is the best disinfectant. Therefore, Congress required all candidates for federal office to account publicly for every dollar raised and every dollar spent. Not so for the new Super-PACs.

Another lesson was that money corrupts. Therefore, Congress almost got up the courage to ban all private donations and institute a system of 100% publicly funded elections. But they blinked and created a hybrid by which politicians had to opt in or out. When the amounts available through public financing failed to keep pace with the amounts candidates could get through private fund-raising, almost every serious mainstream candidate rejected public financing and started holding fund-raisers with wealthy donors.

It appears that the past is prologue.

graphic/ Boston Globe

graphic/ Boston Globe

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Inside the Meme Factory

By Christopher B. Daly

That phrase, Inside the Meme Factory, is the working title of my next book. It refers to an idea that is well illustrated in a piece on page 1 of today’s Times by the estimable James B. Stewart (lawyer, book author, contributor to both the New Yorker and the Times — is there more than one of him?). In his article, Stewart seizes on a comment made by Supreme Court Justice Antonin Scalia and tries to walk it back to its origins. The phrase involved a rhetorical question raised from the bench by Scalia during arguments over the national health care law, asking whether the government could make Americans do other things that are good for them, such as eating broccoli. Here’s the nub:

It turns out that broccoli did not spring from the mind of Justice Scalia. The vegetable trail leads backward through conservative media and pundits. Before reaching the Supreme Court, vegetables were cited by a federal judge in Florida with a libertarian streak; in an Internet video financed by libertarian and ultraconservative backers; at a Congressional hearing by a Republican senator; and an op-ed column by David B. Rivkin Jr., a libertarian lawyer whose family emigrated from the former Soviet Union when he was 10.

 Stewart’s painstaking track-back shows that the idea of challenging the limits of the Commerce Clause originated with libertarian thinkers and was sustained in a series of hand-offs by other libertarians and conservatives, all working within the universe of conservative institutions (Cato, Reason, Limbaugh, the Wall Street Journal op-ed page, Reagan-appointed judges, a former Clarence Thomas law clerk, et al.) And, as so often happens, several of those institutions get crucial amounts of funding from the Kochs and the Scaifes.

The “broccoli” story exemplifies a much larger truth: most of the themes, slogans, argument-stoppers, images, and jokes that shape our politics and much of our public conversation don’t come from nowhere. Many of them are the fruits of deliberate efforts, especially among conservatives, and many of those efforts take place in a nearly hidden network of institutions. Those institutions include an array of think tanks, publishers, and conservative media outlets that generate and amplify conservative “memes.” In my book, I trace the deliberate campaign to fund and build this network of interlocking conservative institutions in the decades after World War II.

Stay tuned.

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Protecting journalists’ sources

By Chris Daly 

It’s good to see the news media agreeing to close ranks on something. In the latest case, it is an attempt by the U.S. Justice Department to force a prominent, respected journalist to reveal the identity of his source. The government wants that identity revealed so that it can go ahead and punish the “leaker.”

According to a story in today’s NYTimes by Charlie Savage, just about every major U.S. news organization joined in urging a federal appeals court to “shield” the journalist, the indispensable James Risen, a Times reporter on national security issues who also wrote a book in 2006 called State of War. In his book, Risen, using confidential sources, embarrassed the CIA by detailing the agency’s failed attempts to sabotage the Iranian nuclear-weapons program. To my mind, that seems like valuable information that a free people ought to have access to, so that we can debate the wisdom of what it being done in other countries in our name. Without reporting like that done by Risen, we would all just be kept in the dark.

The story in the Times has plenty of valuable links to the original documents, including the media’s amicus brief. Here is a link to the key Supreme Court ruling on the issue (and be sure to read down to Justice Douglas’s stirring dissent, which gets it right).

For a fuller understanding of the historical backdrop of the case, here is an excerpt from my new book (due out in about a week) that details the U.S. Supreme Court’s handling of the landmark Branzburg case in 1972. Branzburg v. Hayes was the case that has shaped the legal, political, and constitutional debate over whether journalists should have a “shield law” to allow them to protect confidential sources.

From Covering America © Christopher B. Daly:

(pardon the formatting issues)

In the spring of 1968, [New York Times reporter Earl] Caldwell traveled to Memphis to cover the strike being waged by the city’s sanitation workers, supported by the Reverend Martin Luther

King Jr. Caldwell was in the Lorraine Motel on April 4 when a loud shot rang out.

The only journalist present at the scene, Caldwell immediately called the Times

newsroom and began dictating details of the King assassination, which the editors

spread across the top of page one. According to Caldwell, King had spent

most of the day in his room, then emerged around 6 p.m. onto the balcony, wearing

a black suit and a white shirt. Caldwell’s report continued:

Dr. King, an open-faced genial man, leaned over a green iron railing to

chat with an associate. . . .

The Rev. Ralph W. Abernathy, perhaps Dr. King’s closest friend, was

just about to come out of the motel room when the sudden loud noise

burst out.

Dr. King toppled to the concrete second-floor walkway. Blood

gushed from the right jaw and neck area. His necktie had been ripped

off by the blast.

 

King’s murder touched off a fresh round of violence in cities across America, and

Caldwell returned to the “riot beat” for much of the summer (fig. 12.5).

That fall, Caldwell went to San Francisco to become a West Coast correspondent

for the Times. Through his contacts among the few black reporters in the Bay

Area, he gained access to Black Power advocate Eldridge Cleaver, and by the end

of 1968, Caldwell was the most knowledgeable reporter in the mainstream press

about the emerging Black Panther Party, based across the bay in Oakland. As it

turned out, the Panthers were shrewd enough about the media to want coverage

in the New York Times, and they gave Caldwell access, as well as what reporters

call “color” (atmospheric details), on-the-record interviews, just about anything

he might want. His stories established that the Panthers were heavily armed and

were talking about violent revolution. Caldwell worried about how Cleaver and

the other Panthers would react to his reporting, but he didn’t need to. “The Panthers

wanted people to know what they were doing. They wanted me to write in

the paper about them having guns.”24 His reporting also attracted the attention of

the FBI, which was waging a nationwide campaign of surveillance and intimidation

against radical groups both black and white. That attention would develop

into one of the landmark Supreme Court rulings affecting reporters and their

ability to protect confidential sources.

The legal case began when FBI agents paid a visit to Caldwell and told him

that they wanted a lot more information about the Panthers. Caldwell told the

agents that everything he knew was right there in the newspaper, including the

fact that the Panthers were armed and that they were threatening to kill the president.

Even so, the government wanted more from Caldwell. He refused to talk,

however, believing that any appearance in secret before a grand jury would make

him look like an informant and dry up his sources. The agents were not satisfied,

and the Bureau turned up the pressure, warning him that he would be forced to

testify in court—a step that would not only destroy his relationship with the Black

Panthers but jeopardize his value as a reporter on any other beat as well. Facing

a possible court appearance, Caldwell destroyed most of his Panther files, but

there was still the matter of his testimony. In February 1970 he was served with

a subpoena ordering him to appear before a federal grand jury investigating the

Black Panthers. The subpoena did not name the Times, but the newspaper hired a

prestigious San Francisco law firm to represent Caldwell. Their advice: cooperate.

Hearing that, Caldwell tapped his network of black journalists, who steered him

toward a Stanford law professor, Anthony Amsterdam, a brilliant defense lawyer,

who agreed with Caldwell’s decision not to testify and offered to represent him pro

bono.25

After he continued to refuse to testify about his news sources, Caldwell was

found in contempt of court and ordered to jail, but he was allowed to remain free

while his case went to the Ninth U.S. Circuit Court of Appeals. The higher court

sided with Caldwell, but then the federal government appealed that ruling. Enroute

to the U.S. Supreme Court, Caldwell’s case was combined with two others

and filed under the heading Branzburg v. Hayes. Paul Branzburg was a reporter

for the Louisville Courier-Journal who had been an eyewitness to a drug crime.

(Thus he was not, strictly speaking, protecting a confidential source.) Paul Pappas

was a television news photographer working for a TV station in New Bedford,

Massachusetts, who had gone to nearby Providence to cover the local Black Panthers

chapter and spent several hours inside their headquarters. Like Caldwell,

Branzburg and Pappas were both journalists who had been ordered to testify

before grand juries; like Caldwell, they had refused on professional grounds.

In all three cases, the issue was not a classic instance of protecting the identity

of a confidential source. It was more a matter of preserving the journalists’ access

to sources, which would be destroyed if the people who were being reported on

suspected that the reporters had cooperated with law enforcement. All three cases

involved a constitutional claim that the First Amendment includes not only the

right to publish (and withhold) information freely but also the right to gather news

freely. Recognizing the stakes, news executives threw their institutional weight

behind Caldwell and the other reporters. Supporting briefs were filed by the Washington

Post Company, the Chicago Tribune Company, the American Newspaper

Publishers Association, the American Society of Newspaper Editors, the American

Newspaper Guild, the Radio and Television News Directors Association, the

Press Photographers Association, and the ACLU—along with affidavits from such

respected journalists as Anthony Lukas, Walter Cronkite, and Marvin Kalb.

In a decision handed down on June 29, 1972, the Supreme Court narrowly

ruled against the journalists.26 Writing for the 5–4 majority, Justice Byron White

held that the First Amendment had to be balanced against the Fifth Amendment,

which guarantees criminal defendants the right to have their cases presented to

a grand jury before indictment. In his opinion White invoked the ancient legal

doctrine that “the public . . . has a right to every man’s evidence.” The only exceptions,

he said, are those instances in which the states have adopted laws specifically

granting certain categories of people a legal privilege against having to testify.

Such a “testimonial privilege” might protect a wife from testifying about her

husband, a doctor about a patient, or a priest about a penitent. In such cases,

legislatures determined that some other social good was worth the cost of allowing

the privileged category of people to avoid the grand jury. But, White said,

the Court could not take seriously the idea “that it is better to write about crime

than to do something about it.” If reporters know things that prosecutors want to

find out, they must tell what they know. Besides, the justice wrote, if the Court

created a special privilege for journalists, it would soon have to define who is

(and is not) a journalist—a task that raised the specter of government licensing

of journalists, which would be far more murky than determining who is a doctor

or a priest. “Almost any author may quite accurately assert that he is contributing

to the flow of information to the public,” White wrote, warning that just about

anybody could claim to be a journalist of one variety or another. Finally, White

observed that the U.S. attorney general had written a set of guidelines governing

the issuance of subpoenas to reporters, which the high court thought ought to

suffice for the bulk of cases.27 The majority opinion also included an invitation

to legislatures to create a “testimonial privilege” for reporters, and many state

legislatures went ahead and passed versions of what are known as “shield laws.”

In a brief concurring opinion, Justice Lewis Powell, though voting with the

majority, very nearly came down on the other side. He warned prosecutors that

“no harassment of newsmen will be tolerated,” and he wrote that if reporters feel

they are being abused by overzealous prosecutors seeking the names of confidential

sources, then those reporters should go to court and seek a protective order. “The

asserted claim to privilege should be judged on its facts by the striking of a proper

balance between freedom of the press and the obligation of all citizens to give relevant

testimony with respect to criminal conduct,” Powell wrote, saying it is up to the

courts to handle such claims on a case-by-case basis. Nevertheless, his joining with

the majority had the effect of denying journalists’ claims to a constitutional privilege.

Among the dissenters, Justice William O. Douglas wrote one of the most eloquent

statements of press freedom in history. Having staked out a position as a

First Amendment fundamentalist, Douglas saw the Caldwell and related cases

in clear-cut terms. “My belief is that all of the ‘balancing’ was done by those who

wrote the Bill of Rights,” he said, adding that “by casting the First Amendment

in absolute terms, they repudiated timid, watered-down, emasculated versions

of the First Amendment. . . .” The key to understanding the First Amendment,

Douglas argued, is to recognize that it exists for the benefit of the American people

as a whole. If the people are to govern themselves, they must have reliable,

independent sources of information. “Effective self-government cannot succeed

unless the people are immersed in a steady, robust, unimpeded, and uncensored

flow of opinion and reporting which are continuously subjected to critique,

rebuttal, and re-examination,” he wrote. In Douglas’s view, the free press cases

that come before the Court are not really about the press per se; they are about the

rights of the American people, the ultimate sovereigns of our system. The press,

which serves as the agent of its audience, is incidental to the greater purpose

of self-government. Douglas continued: “The press has a preferred position in

our constitutional scheme, not to enable it to make money, not to set newsmen

apart as a favored class, but to bring to fulfillment the public’s right to know.

. . . There is no higher function performed under our constitutional regime. Its

performance means that the press is often engaged in projects that bring anxiety

and even fear to the bureaucracies, departments, or officials of government.” He

concluded by warning that the Court’s majority opinion would reduce journalists

to stenographers, and that without the right to protect confidential sources, “the

reporter’s main function in American society will be to pass on to the public the

press releases which the various departments of government issue.”

The majority, however, did not see it that way. As a result of the Court’s 5–4

ruling against the journalists, reporters and their sources have operated in legal

jeopardy ever since, at least in federal courts.

On the state level, the Branzburg ruling had the effect of spurring many legislatures

around the country to enact shield laws to protect reporters in state courts, but Congress has steadfastly

refused to recognize the same right on the federal level. Ironically, the Branzburg

ruling also had another impact: it dried up what was probably the FBI’s greatest

source of information about the Black Panthers—the reporting that anybody

could read in the pages of the New York Times. Of course, by the time Caldwell’s

case was resolved, the Justice Department had lost much of its interest in the

Black Panthers. Most of Caldwell’s contacts were in jail, in exile, or dead.

* * *

Meanwhile, by the late 1960s, more and more people. . .

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A media roundup

By Chris Daly 

–First, let’s pause a moment and let this sink in: Eastman Kodak has filed for bankruptcy protection.

This is the company that ruled photography in the 20th Century, the company that made photography a popular activity, and the company that really enabled photojournalism by making cheap portable cameras as well as flexible, lightweight film.

 

 

–Second, the chips are falling in the online piracy dispute. Regrettably, this issue appears to be turning into a shouting match. For all the advocates of “freedom,” the question remains: What about stealing the work of creative people? To be continued. . .

 

–Coincidentally, there was also a little-noticed SCOTUS ruling yesterday on copyright. Now, while I favor granting copyright to make sure that content-generators get paid for their work, I have to wonder how much sense it makes to impose new copyright restrictions on the work of dead foreigners. The purpose of the U.S. copyright law is to encourage creative output by giving Americans an economic incentive to write, compose, paint, etc. Putting new restrictions on “Peter and the Wolf” is not going to bring any new work out of Prokofiev (no matter how much his heirs may rake in). This, too, is not the answer.

 

 –Who knew that Twitter had all these features? (I should have but didn’t.)

–Finally, the gift (to media reporters) that keeps on giving: The Murdoch Hacking Scandal. Jude Law is smiling today because he is among three dozen victims of phone hacking by Murdoch reporters who have extracted “settlements” (i.e., payoffs) from Murdoch’s News Intl. The “nut graf”:

The apparent admission of a cover-up seemed likely to add to the challenges facing Mr. Murdoch in Britain. News International, the British subsidiary of News Corporation said it would not immediately comment, Reuters reported.

Andrew Cowie/Agence France-Presse — Getty Images 

 

 

 

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Whose press freedom?

By Chris Daly

Today’s Times includes a “sidebar” piece (column?) by legal correspondent Adam Liptak. I found it frustrating for a couple of reasons. For one thing, it is a bit of a mystery why it is running now (except for the thin reed of the anniversary of the Citizens United ruling from the Supreme Court). There is no discernible “news peg.” But that’s not really important.

What is more frustrating is that the piece provides so few links to the scholarly literature on this vast subject. That’s where the Times could have really used the Web to help its readers go deeper. I am going to try to find some of this material and post those links here.

Meanwhile, let me throw out a thought: At the time the Founders enshrined the idea of “freedom of the press” in the Bill of Rights, the press of the day was small, local, independent, and opinionated. The typical form of ownership was a “sole proprietorship” — that is, the printer who ran the press owned the business entirely himself. But even then, many “job printers” handled printing chores for all manner of customers, including customers whom they disagreed with. So, in that scenario, who enjoyed press freedom? The owner of the business that facilitated the mass communication? The author of the words? Both?

Keep in mind, the main goal of the founders was to prevent “prior restraint” — the use of government power to prevent certain facts or ideas from ever getting published in the first place. That seems like as worthy a goal as ever. Therefore, the rights of all individual human beings who want to communicate with other individual human beings should be protected from government interference. That, it seems to me, ought to be the operating principle here.

Comments?

 

 

 

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