Category Archives: Supreme Court

Let cameras into court

By Christopher B. Daly 

As I recently argued, we the people deserve to have cameras in all our courtrooms (except maybe juvenile court) and our legislative bodies.

The latest case in point: the appearance in U.S. District Court in Boston yesterday by Dzhokhar Tsarnaev, the surviving suspect in the Boston Marathon bombing case. Radiating out from downtown Boston, millions of people have a keen interest in this case, and they all have a right to see this defendant. We have a right to hear him say “Not guilty.” We have a right to observe the performance of the government parties — the prosecutors, the judge, the guards, etc. We have the right to watch our government.

Instead, what we get is a chalk sketch like this one:

Suspected terrorist Margaret Small/AP

Suspected terrorist
Margaret Small/AP

We can do better, and we the people deserve better. 

If anybody knows of a good argument for continuing to ban cameras from federal courts, please leave a comment.

 

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Filed under Boston, broadcasting, journalism history, media, Photojournalism, Supreme Court

Surveillance roundup

[NSA Out]*

*Now, there’s some metadata for you. Back in the day when I worked for the Associated Press, we had to “slug” our material with various directives, indicating who had access to the material and whether users were free to use another news agencies photos or had to use AP photos. We often labeled our “content” with warnings like the one above. I only wish I could label all my emails with a warning to the NSA to leave them alone. Until then, I am looking for a user-friendly encryption system. If you use one that you recommend, please leave a comment below. If you are from the NSA, stop reading NOW.

–If true, this statement from Edward Snowden is important, because it would have a direct bearing on his possible guilt under the Espionage Act.

–If sincere, this statement from a former judge on the super-secret secrecy court is interesting. Like Obama, this guy now welcomes a debate over our policy on secrecy (which was supposed to remain secret, thus preventing the very debate he now welcomes).

–If it weren’t laughable, this story about our allies would be poignant. [“I’m shocked, shocked, to find out that spying is going on here, Rick.”]

BTW, do you have clearance to read this? 

imgres3

If not, report yourself to the NSA immediately. Or to one of our allies. Or just wait and let your ISP or telecom company rat you out. 

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Filed under broadcasting, First Amendment, Journalism, leaks, Supreme Court, Uncategorized

A shield law for reporters? Thanks, but no thanks!

By Christopher B. Daly

First, the Obama administration antagonized the news media by seizing the phone records of The AP-logoAssociated Press. Now, in an effort to make up, the president has thrown his support behind a Senate bill that would create a federal “shield law” that would allow journalists to legally protect their confidential sources.

A lot of journalists have embraced the idea. But I believe that journalists should say, “Thanks, but no thanks.”

Tempting as it might be, a federal shield law is a bad idea for journalists. We do not need it, and we may ultimately regret it. The relevant part of the First Amendment to the Constitution says: Congress shall make no law abridging the freedom of the press. That powerful simple phrase “no law” means just that – no law, period. It means Congress simply cannot legislate in this area.

As a near-absolutist about the First Amendment, I think that part is clear and simple. Furthermore, I believe that a proper reading of the First Amendment makes a shield law superfluous. We almost got such a reading in 1972, in the Supreme Court case known as Branzburg v. Hayes. In that case, the nation’s highest court said that when prosecutors haul reporters in front of federal grand juries and demand to know the names of their sources, the reporters must reveal their sources or face going to jail for contempt of court. In other words, reporters do not enjoy a legal “privilege” against having to testimony such as those enjoyed by doctors, lawyers, or clergy.

The ruling in Branzburg, while wrong, was nearly right. It was a 5-4 ruling, and one of the majority justices was clearly ambivalent about the issue. Justice Lewis F. Powell, as the New York Times reported in 2007, wrote some handwritten notes while the case was being decided. Powell (no friend of the news media) went right up to the line of agreeing with the minority instead of the majority. He wrote:

I will make clear in an opinion . . . that there is a privilege analogous to an evidentiary one, which courts should recognize and apply on case by case to protect confidential information. . . . My vote turned on my conclusion . . . that we should not establish a constitutional privilege.

Those notes are fairly opaque, but they do suggest that reporters very nearly got the recognition they deserve. [Brief digression: Powell’s notes were written on a court form captioned U.S. vs. Caldwell. That’s not a mistake. The Branzburg case was combined with two others in 1972, including a federal subpoena ordering NYTimes reporter Earl Caldwell to testify before a federal grand jury and name his confidential sources among the Black Panthers. For more, see chap XX of my book, Covering America.] The reasoning for granting reporters a “testimonial privilege” is pretty straightforward. Through the First Amendment, the Constitution gives the practice of journalism a 1007LIPTAK.1100.1065special status that recognizes the vital role that a free and independent press plays in the ability of the American people to govern themselves. If the people are to make informed votes and policy choices, they need good sources of information — especially about the performance of the government itself. But like many powerful institutions (corporations, the clergy, and others), government officials like to control the flow of news and information. So, they regularly try to intimidate and chill the practices of journalism.

The practice of journalism includes both a news-gathering function and a news-disseminating function. Neither one is of much use without the other. That is, if journalists are free to disseminate news but not to gather it, they will have nothing of value to share with the people. Conversely, if they are free to gather news but not to disseminate it, the people will again be thwarted in their ability to learn the things they need to know to govern themselves. Thus, journalists must be free to gather news (by reporting) and to disseminate news (by printing, broadcasting or posting).

In the normal course of news-gathering, journalists seek information in all quarters. They observe some events first-hand, they examine documents, and they interview people. Often, the most sensitive and valuable kinds of news come to journalists from sources who need to remain anonymous to avoid retaliation such as being fired or prosecuted. In those cases, journalists promise the source confidentiality. They say something along these lines: Please give me the important information you have, and in return, I will promise to keep your identity a secret.

These kinds of promises are not routine, but they are fairly commonplace — especially in certain kinds of fields, such as reporting about the military, our spy agencies, or any sort of abuse of power. The source wants to blow the whistle on a secret that the source considers illegal, immoral, or just plain wrong. Often, the reporter is indifferent on that question, but the reporter can see that the material should reach the general public, so that the American people can decide the issue.

Should we, for example, use drones to kill American citizens abroad? That’s an important question, but we could not even debate it without “leaks” from confidential sources. Without a constitutional privilege, reporters make such promises to their sources at their peril. It is perfectly predictable that those in power (from either party) will reflexively attempt to control the flow of information to the people. One attractive mechanism for doing that is to force journalists to name their confidential sources and then to go after the sources and punish them. If I were a tyrant seeking to use the limited powers of government to create unlimited personal power, that is one of the ways I would go about it.

Gilbert_Stuart_Thomas_Jeffersen(5)That is exactly what Thomas Jefferson and his supporters among the Founders foresaw and sought to prevent. One of the remedies they came up with was an absolute guarantee of press freedom. That’s why I believe we journalists do not need to ask Congress to bestow such protections on the practice of journalism. Indeed, we should be wary of inviting Congress to legislate about the press at all, because once legislators start writing laws, it is exceedingly difficult to get them to stop. Today, they may say they are proposing to do us a favor by granting us a shield. Tomorrow, having established the precedent, they may decide to improve that law by “clarifying” just who is a journalist. Before long, Congress might decide to license journalists or protect confidential sources in the Executive branch but deny such protection to their own staffers. There would be no end to it.

Instead, I believe that journalists should stand firm and insist on the rights we already have under the First Amendment. That was essentially the view expressed by one of the dissenters in the Branzburg case. In an eloquent and penetrating opinion, Justice William O. Douglas argued that the First Amendment exists for the ultimate benefit of the American people. When reporters do their jobs, Douglas wrote, “the press is often engaged in projects that bring anxiety and even fear to the bureaucracies, departments, or officials of government.” But if journalists can be intimidated into giving up their confidential sources, he warned, then “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.”

[Full disclosure: I worked for The Associated Press for a total of 10 years, between 1976 and 1989, in the NYC world headquarters and in the Boston bureau.]

 

 

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Filed under First Amendment, Journalism, journalism history, New York Times, 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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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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