Tag Archives: SCOTUS

June 2, 2014 · 12:01 pm

SCOTUS: If you make journalists criminals, then only criminals can be journalists.

by Christopher B. Daly 

It’s no surprise, I suppose, that the U.S. Supreme Court has rejected an appeal from a New York Times reporter who has been seeking to avoid being sent to jail for his refusal to testify about his sources. The ruling is a setback for reporter James Risen and for the entire enterprise of journalism as well. The reason: the high court cannot find protection for reporters in the U.S. Constitution.

The First Amendment famously says (in part): “Congress shall make no law . . . abridging the freedom of the press.” As I have written, I believe that the First Amendment goes beyond the right to disseminate news and includes the right to gather news. In some situations, that news-gathering function, also known as reporting, may require reporters to extend a promise of confidentiality to a source. I believe that they have a constitutionally protected right to do so. (Actually, to be precise: I believe that you and I and the rest of the American people have the right to learn what the journalist can learn — that is, we are entitled to information, especially controversial, secret information, that will enable us to make good decisions about powerful institutions.)

Many people disagree. They invoke the ancient legal doctrine which holds that justice demands every person’s testimony — no exceptions (oh, except for the “testimonial privilege” widely granted to clergy, attorneys, spouses and others — plenty of people enjoy the right not to testify with no deleterious effects on society). Superficially, this makes a certain amount of sense. But it overlooks the chilling effect on both sources and reporters if journalists can be dragged into court and ordered, under oath, to break their word and reveal the identities of their confidential sources. The fully predictable result of this doctrine will be that the people will not learn all that they might about difficult, hidden truths.

And a word here about criminal justice. Obviously, the investigation, prosecution, and punishment of crime is an important value in society. I would not want to live in a society that did not suppress crime. But we must bear in mind that law enforcement is not a transcendent value; it is not so important that it can be used to sweep away all other rights and values. It has to be balanced against other important priorities (like being secure in our persons and papers).

I maintain that it is better for a handful of prosecutors to miss out on the testimony of a handful of people than it is to impose blinders on the press. I don’t want to live in that kind of society, either. Prosecutors pursue justice; journalists pursue truth. Those are both important, and sometimes allied, enterprises. But they are not identical, and when they conflict, my default position would be to privilege truth-seeking.

Also, bear in mind: prosecutors have plenty of techniques and powers that journalists don’t have.

–They have the power to subpoena (non-journalist) witnesses and question them under oath.

–If witnesses lie, prosecutors can charge them with perjury.

–Prosecutors have the power to induce suspects to talk by negotiating plea-bargains.

–Prosecutors have the home-team advantage in every courtroom in the country.

–Prosecutors have the power to get a search warrant and spy on suspects.

If prosecutors can’t solve a particular crime with all those powers (which journalists don’t have), then maybe they’re just not trying hard enough.

One implication of today’s Supreme Court ruling: until there is a new array of justices on the high court who properly understand the Constitution, I guess the only remedy is to support legislation (S. 987) to create a federal shield law for reporters. Incidentally, most states already have shield laws that protect journalists in state courts, and we have not suffered any terrible crime wave as a result. All those state AGs and DAs somehow manage to live with laws that uphold press freedom and balance it against the imperatives of law enforcement.

 

 

 

 

 

 

 

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May 6, 2014 · 10:23 am

SCOTUS does not understand freedom from religion

By Christopher B. Daly 

Screen Shot 2014-05-06 at 10.05.51 AM

In its latest ruling on the role of religion in public life, the U.S. Supreme Court got it wrong (again). The court issued a ruling this week written by the narrow majority of five justices who often vote together as a bloc that seems dedicated to keeping things just the way they are. The opinion was written by Justice Kennedy, joined in whole or in part by justices Roberts, Alito, Scalia and Thomas — an enduring coalition of Republican-nominated originalists, textualists, conservatives, traditionalists. It’s also relevant in this connection that they are also all Catholics.

In their ruling in Greece v Galloway, the majority held that it was constitutional for a small town in upstate New York to open all its town board meetings with a prayer. Reading all the majority opinions, I find the following rationales for this wrong holding:

1. An appeal to tradition. Basically, the five conservatives believe that the practice is okay because “we have always done things this way.” On those grounds, Americans would still maintain slavery, jail homosexuals, criminalize birth control, prohibit the sale of alcohol, and deny women the right to vote.

2. A popularity contest. The five conservatives engage in a bit of sociology and observe that most folks in Greece, N.Y., are Christians, so it does not surprise or dismay them that when the town solicits local clergymen to offer the public prayer, the response comes every time from Christian clergy. That’s exactly why their ruling is so wrong and dangerous: it perpetuates the domination of the majority over the minority. In so doing, the conservatives give force of constitutional approval to the routine violation of the conscience of any person in Greece, N.Y., who is not a Christian. In order to conduct their public business, such people must bow to the coercion of their mostly Christian neighbors or risk small-town opprobrium.

3. Those prayers are just for officials, not the public. The conservatives assert (with no evidence) that the prayers at the start of the public meetings are for the benefit of the town officials and are not aimed at the members of the general public in attendance. If so, then why subject non-believers to this public ritual? The officials should move their pre-game prayers into the locker room.

4. It could be worse. At least, that’s Thomas’s view. In his concurrence, Thomas states his view that the Constitution imposes a ban on an official religion only at the national level. He cites the 10th Amendment for his view that the states — some of which had established religions at the time of the nation’s founding — retained their rights to establish religions (and presumably, allow those theocratic states to impose taxes on religious dissenters to support the religion preferred by the majority, so if Thomas, a Catholic, settled in Utah, he might have to support the LDS religion, which his pope would not approve). Thomas reads the First Amendment literally and emphasizes that when it says “Congress shall make no law respecting the establishment of religion. . .” that means Congress alone among the nation’s legislatures is restrained from doing so. While he’s at it, Thomas also waves off the 14th Amendment and tells American citizens that it doesn’t mean what they think it does.

So, there you have it. Five robed men have decided that every government meeting in the country may commence with a generically Christian prayer. What’s wrong with this?

In my view, the majority position shows a lack of understanding of what it means to live in a diverse society. The founders themselves recognized their differences and addressed a question that is fundamental to American society: how can people who are different live together in harmony?

How can the Jew and the Muslim support a common school system? How can the Catholic and the Protestant agree on eligibility for public office? How can the atheist, the Buddhist, and the druid all agree on which holidays to observe officially?How can the Baptist, the Mormon, and the agnostic all serve together in units of the armed forces? Can anyone use the power of government to favor one religion over another (or religion over non-religion)? If I can use government power to impose an outward show of loyalty by someone who does not believe as I do, am I not violating that person’s conscience? (It’s easy to see that a Catholic in colonial Massachusetts might object to supporting the Congregational Church, and it’s not that hard to see how an atheist with business to conduct at the Greece, N.Y., town meeting might feel coerced into listening without objection while a Christian clergyman opens the public’s business by asserting “the saving sacrifice of Jesus Christ on the cross.”)

For the five justices who made up the majority in this case, consider this thought experiment:

A robed man wakes up in a place that is new to him. He begins to observe his new neighbors. He is told that if he wants to remain unharmed in their midst, he must attend a meeting of the people. The meeting begins with a ritual that the people have observed for generations. They believe in the transforming power of the blood of a dove. So, an unrobed man begins the public meeting by cutting the head off a dove and swinging the bleeding corpse over the heads of the gathering on a long string attached to the bird’s feet. He swings the bird in a clockwise fashion so that all the people are sprinkled by the bird’s blood. (A few dissenters grumble privately that the man should be swinging the bird counter-clockwise, but they hold their tongues, because they know that at the next meeting, there will be a counterclockwise ceremony.) The robed stranger objects to this gruesome ritual and tries to shield himself from the bloody spattering. His new neighbors are horrified by this rejection of the ancient ways of their forbears and decide that whatever the robed man wants , he is not going to get it until he submits to the tradition of the majority.

So, Justices Kennedy, Scalia, Alito, Roberts and Thomas, I ask: what’s the problem in this scenario?

 

[Extra credit: here’s an introduction to the long history of this issue.]

 

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June 24, 2013 · 9:43 am

Monday morning roundup

Odds & Ends:

–Here’s David Carr on the “British invasion” of the high end of American media. (Why don’t they ever try to take our unpaid internships and crummy starting jobs?)

–Here’s the Times’ attempt to keep with Edward Snowden. What I found remarkable about this story — which was, after all, quite inconclusive — was the combined throw-weight of the team of reporters. In addition to the triple byline, I count seven more bylines in the credit line at the bottom. That’s 10 reporters on three continents, not to mention interns, news aides, editors, photographers, and photo editors. Take that, HuffPo!

–Here’s a Times feature on the antiquated ways of SCOTUS. These are not merely quaint. I believe they are snubbing their noses at all the rest of us, because they can. They are among the most unaccountable holders of power in the country. Perhaps an occasional impeachment (yes, it can be done and has been) would get their attention.

 

 

 

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July 11, 2012 · 12:26 pm

“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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June 29, 2012 · 10:05 am

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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January 23, 2012 · 3:38 pm

G.P.S. and Y-O-U

By Chris Daly

Phew! 

The Supreme Court (finally) got one right today. Ruling in a critical case that involves (among other things) your freedom to control who knows what about you, the Court said the police do not have the right to sneak into (or under) your car to plant a secret GPS device so they can track your every move, for as long as they want. It was a unanimous ruling, no less, which is a rarity these days.

Here is the ruling.

Here, for the record, is the Fourth Amendment (always worth brushing up on), plus the Wiki page.

 

 

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January 19, 2012 · 9:02 am

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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