Tag Archives: Supreme Court

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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Filed under blogging, First Amendment, Journalism, journalism history, leaks, media, publishing, Supreme Court

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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