Tag Archives: press freedom

Jefferson on the press

“The people are the only censors of their governors: and even their errors will tend to keep these to the true principles of their institution. To punish these errors too severely would be to suppress the only safeguard of the public liberty. The way to prevent these irregular interpositions of the people is to give them full information of their affairs thro’ the channel of the public papers, & to contrive that those papers should penetrate the whole mass of the people. The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter. But I should mean that every man should receive those papers & be capable of reading them.”

–Jefferson to Edward Carrington, 1787

 

 

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The Monday roundup

By Christopher B. Daly

Lots to catch up on.

–BU Prof. David Carr uses his NYTimes column to meditate on the creepy side of the all-digital future.

And it’s not just those raised on screens who are prone to distraction. As adults, we make “friends” who are not actually friends, develop “followers” composed of people who would not follow us out of a room, and “like” things whether we really like them or not. We no longer even have to come up with a good line at a bar to meet someone. We already know he or she swiped right after seeing us on Tinder, so the social risk is low.

–That reminds me of this funny/true video (which I found while allowing myself to be distracted by Facebook), featuring Jena Kingsley.

–The Sunday Times Magazine featured this profile of Megyn Kelly, who may be the key to someday getting Bill O’Reilly off the air. The piece, by Jim Rutenberg, makes the point that the freakishly telegenic Megyn Kelly is much more than 25kelly7-master675just another FoxNews minx. She succeeds by being slightly unpredictable in her politics — at least within the context of Fox News.

Below is a photo from the defining moment (thus far) in Kelly’s career — the election night when she stopped taking orders from

screen-shot-2013-08-08-at-11-28-50-am

Karl Rove and marched down the corridor at FoxNews to the data desk, demanding to know what was actually happening in the reality-bounded world.

–Here is the Timestake on its own national-security reporter James Risen and his refusal to buckle to government pressure to name his confidential sources. Worth reading. While standing by their man, the Times also issues this ominous warning:

The abandoned pursuit of Mr. Risen leaves behind an atrocious legal precedent: a 2-to-1 ruling in 2013 by the United States Court of Appeals for the Fourth Circuit, in Virginia, which denied the existence of any reporter’s privilege in the First Amendment or common law. That position was advocated by the Justice Department, and it was repeated in briefs asking the Supreme Court to deny Mr. Risen’s request for review, which it did. The Fourth Circuit includes Maryland and Virginia, home to most national security agencies.

This ain’t over.

–And the Times public editor Margaret Sullivan waded into the uncomfortable issue of whether all human lives are equally valuable. In the news business, the answer appears to be no. That was certainly true when I broke into journalism in the 1970s. My editors at the AP patiently explained to me that a bus crash on I-95 was a hell of a lot more important than a train crash in India.

ELSEWHERE. . .

–The Boston Globe has finally brought some science to bear on the ridiculous “Deflategate” controversy. This should have been the second graf in the very first story:

“Despite the allegations by the Colts, scientists are unanimous that the pressure of a gas depends on the temperature — the lower the temperature, the lower the pressure.”

Anyway, that’s the upshot of today’s story.

–The Globe’s former metro columnist Patricia Smith has reinvented herself as a professor of poetry at the College of Staten Island. A rare comeback from journalistic disgrace.

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Holder: Worst AG in US history for journalism?

By Christopher B. Daly

There are, of course, many ways to evaluate the performance of Eric Holder as the Attorney General of the United States. Since he announced his intention to retire, many voices have attempted to determine his legacy. I want to focus on his treatment of journalists, which may be the most hostile in the history of the country.

His most egregious and unconstitutional offense has been to investigate and prosecute journalists for doing their jobs — which, at its most vital, entails gathering and sharing information about the actions of our government. When that news-gathering has involved discovering information that the government prefers to keep secret, Holder has been ruthless — far more agressive, for example, than he was in prosecuting those lenders and speculators who crashed the U.S. economy in 2008.

It’s not just a campaign against “leakers” such as Chelsea Manning and Edward Snowden. What has really marked Holder’s approach is his determination to go after the journalists who get secrets from government sources. Among his biggest targets has been the New York Times (no accident, of course, because the Times is a leader in investigating government secrets). With considerable restraint, the Times made these observations today:

But Mr. Holder has continued Mr. Kennedy’s work in another way, one he is less likely to embrace but is no less part of his legacy. Like Mr. Kennedy, Mr. Holder has frustrated and confounded even his staunchest allies for his views on civil liberties.

Mr. Holder approved of the National Security Agency’s authority to sweep up millions of phone records of Americans accused of no crime. He subpoenaed journalists and led a crackdown on their sources. He defended the F.B.I.’s right to track people’s cars without warrants and the president’s right to kill an American who had joined Al Qaeda.

And later:

Mr. Holder’s Justice Department started more investigations than any of his predecessors into government officials who disclosed information to reporters. He subpoenaed journalists’ emails and phone records, and demanded their testimony. The New York Times reporter James Risen, who has refused to reveal his sources about information on Iran, remains under subpoena.

Mr. Holder acknowledged in the interview that those efforts went too far at times and pointed to new rules limiting investigations involving journalists. . .

To put all this in historical perspective, it might be worth noting that Holder is not the only attorney general in U.S. history

Attorney General Charles Lee, 1795-1801

AG  Charles Lee, 1795-1801

to have prosecuted journalists. One notable enemy of journalists was the third AG — the rarely remembered Charles Lee of Virginia, who served under Federalist president John Adams and enforced the blatantly unconstitutional provisions of the Sedition Act of 1798, which made it a crime to publish certain kinds of criticism of the government or its officials. (When the Jefferson administration came into power in March of 1801, Lee was promptly replaced by Levi Lincoln Sr. of Massachusetts, and the Sedition Act was mercifully allowed to expire.)

Then there was Alexander Mitchell Palmer, who occupied the office during the late years of the Wilson administration. He is most notorious for carrying out the “Palmer raids” on suspected radicals, but he

AG Palmer

AG Palmer

also prosecuted several high-profile cases under the Sedition Act of 1918 to attempt to silence critics of U.S. involvement in World War I.

Ultimately, I suppose, it is worth remembering that all attorneys general are nominated by the president, and they serve at his (or her) pleasure. So, attorneys general are only as good as the president allows — or requires — them to be.

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Egypt rounds up journalists

By Christopher B. Daly

[see update below]

Like almost every regime that wants to cling to power, the government in Egypt has decided to attack the news media. Prosecutors announced that they were charging 20 journalists who work for Al Jazeera with consipring with terrorists. Their crime: contacting enemies of the regime as sources and reporting their views. They are also being charged with broadcasting false images of “a civil war that raises alarms about the state’s collpase.” Translation: they called it the way they saw it.

According to the Times:

The charges are the latest turn in a widening clampdown on public dissent by the military-backed government . . .

This is obviously a shameful attempt to intimidate the entire news media, and it should be denounced in the strongest terms by the United States. Here’s what we got, in the daily briefing from the U.S. State Department:

The State Department spokeswoman, Jen Psaki, said Egypt should reconsider the prosecution. “The government’s targeting of journalists and others on spurious claims is wrong and demonstrates an egregious disregard for the protection of basic rights and freedoms,” she said.

Better than nothing.

UPDATE:

Apparently, the regime in Egypt is having second thoughts — not about rounding up their own journalists, but about the unintended consequences of the crackdown on the rest of the world’s press. Their real goal seems to be to insulate their own people from exposure to the ideas of the Muslim Brotherhood. Hence the roundup of Al Jazeera journalists who have Brotherhood sources.

But they seem unprepared for the fallout — which is a natural reluctance of any self-respecting journalist to stick around in Egypt with the threat of arbitrary arrest hanging over them. Any reporter covering Egypt needs to have and use Brotherhood sources. But if that means you can be accused of conspiring with terrorists, it might be time to leave Egypt for a while.

In a statement on Thursday, the State Information Service said Egypt welcomed foreign correspondents to cover even “constructive criticism” of the government, in accordance with its commitments to democracy, freedom of expression and transparent elections.

Alluding to journalists’ fears about being charged for interviewing members of the Brotherhood, the statement said that “mere contact” with any “accused criminal” is not a crime under Egyptian law.

The statement, however, contained caveats. It said that Egyptian law does not protect freedom of “thought and opinion” if it develops into action that violates Egyptian laws, like “crimes that threaten the country’s national security.”

The statement also said that contact with an “accused criminal” may be a punishable offense “if this contact is a sort of assisting or inciting.”

Hmmm… I’d say it might be time to go visit some other hotspot for a while.

 

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Surveillance state: The rationale for secrecy is, of course, SECRET

By Christopher B. Daly

top-secret-stampYou may think you are a sovereign citizen of a free country. You may think that “we, the people” rule through elected representatives who are accountable to us. But that would be wrong.

The latest affront to self-government is a ruling issued by a federal appeals court on Friday (beware of Friday rulings). Here’s the background:

Thanks to accused leaker Edward Snowden, we know that the U.S. government runs a secret program in which the government calls on the telephone companies to hand over information about you without a court order or subpoena, even if you are not suspected of any wrongdoing. You were not supposed to know about it, but that cat is now out of the bag.

So, you might want to know where the government gets off concocting such a scheme and how it could possibly square such massive, secret, peacetime spying on law-abiding citizens with the Constitution. Well, too bad. The Obama administration’s lawyers, who wrote a memo in 2010 attempting to justify the whole thing, decided that the memo itself should be kept secret, and President Obama agrees.

The Electronic Frontier Foundation and others filed suit seeking to get access to the memo. The government refused. On Friday, Judge Harry T. Edwards said no. EFF can’t see it and neither can we, the people. According to a link-rich story in today’s Times by the redoubtable Charlie Savage, the ruling seems likely to stand.

This is just the latest cause for disappointment in President Obama when it comes to transparency and press freedom. If he wanted to really serve those great causes, he could:

–stop prosecuting and issuing subpoenas to reporters at an unprecedented pace

–stop over-classifying new material as “secret”

–begin reducing the backlog of classified materials that can be de-classified with no harm

–adopt the common-sense reforms recommended by his own task force on surveillance issues.

There are many things to admire about Barack Obama, but his record in this area is not one of them Perhaps it confirms that the Founders were right to be suspicious of executive power per se, regardless of the individual wielding that power. They saw, rightly, that power is by its very nature aggressive, always seeking to expand and never yielding unless forced to do so.

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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 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 [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.

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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.

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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.

princelings-landing-page-jumbo

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