Monday, January 16, 2006
Squoze! Journalists and the Law
In the first, Reason's John Berlau examines special prosecutor Patrick Fitzgerald's use of business regulations to strong-arm Time Magazine into cooperating with federal subpoenas in the Plame case. The interesting wrinkle here is that it wasn't simply a matter of Matt Cooper going to jail, as was widely reported.
Time, Inc.'s offices and directors also faced penalties equal to, or possibly exceeding those facing Cooper for refusing to turn over his notes:
Back in June, when New York Times reporter Judith Miller was about to go to jail on contempt charges for refusing to testify about her anonymous sources, she and the Times had company in legal hot water: Matthew Cooper and his bosses at Time magazine. Both journalists were subpoenaed by prosecutor Patrick Fitzgerald, and both were alternately praised as First Amendment heroes and vilified as arrogant media elitists. But on June 9, in a move that took many by surprise, Time Inc. surrendered the magazine’s notes to Fitzgerald and revealed its anonymous source in the Valerie Plame/Karl Rove/Joe Wilson/Robert Novak saga.
That much is well-known. What isn’t widely understood is the role that may have been played by a law that most people don’t associate with free press issues, the Sarbanes-Oxley Act...
In taking on Time Inc., Fitzgerald seemed to take a page from New York’s anti-corporate crusader of an attorney general, Eliot Spitzer. Fitzgerald came up with novel ways to implicitly and explicitly threaten all of Time’s executives and corporate directors with steep fines and/or jail time. He tapped into a populist theme in his courtroom arguments and briefs, arguing that Time’s officers and board members could individually be held responsible for the corporate “crime” of withholding documents. “The theory that he cited was, ‘How could a board possibly permit violation of a court order?’” says Floyd Abrams, the respected First Amendment attorney who represented Miller as well as Time and Cooper at various points in the case. “He certainly suggested there could be criminal sanctions imposed on individuals in senior management if they defied the court order.”
This is what Time Inc. faced, and that is why comparisons to The New York Times aren’t completely fair. Fitzgerald could go after Time as a corporation. But Miller, who never filed a story about Plame, “apparently kept personal possession of her notes and the Times’ view is it never had them,” The Wall Street Journal reports. Since it seems there were no corporate documents to be surrendered, Fitzgerald never had the opportunity to ask the court to hold officers and directors of the New York Times Co. in contempt. Time Inc. wasn’t so lucky.
Another mystery solved. Strange, isn't it, with their vaunted passion for objectivity and truth, that Time Magazine didn't report this little detail? I seem to recall a lot of high-minded bloviation at the time about 'journalists not being above the law' and whatnot. It doth now appear that it may have been more a case of the Board of Directors not quiiiite being willing to pay the hefty price of Matthew Cooper's defiance.
The other amusing detail in light of the current NSA leak inquiry, is this New Yorker piece, which covers in detail the 1972 case so disingenuously referred to in Norm Pearlstine's apologia. The quote is here:
Thus, Time Inc. last week took the unusual step of asking the U.S. Supreme Court to review lower-court decisions and rule that Matt Cooper may not be jailed and Time Inc. may not be fined for refusing to disclose confidential sources to a federal grand jury. Our petition argues that much has changed in the 33 years since the Supreme Court last looked at this issue and ruled against several reporters in a 5-to-4 decision that resulted in murky law.
Furthermore, the District of Columbia and 49 states now protect confidential sources. We think those protections strongly support our contention that the First Amendment (which protects freedom of the press) and common law should be held to extend the reporter's privilege to federal cases.
We believe the Supreme Court should recognize a reporter's privilege under federal rules of evidence adopted since 1972--rules that have led federal courts to recognize a psychotherapist-patient privilege, a spousal privilege, a cleric-communicant privilege and many others.
We argue further that jailing or fining a witness based on secret evidence submitted by the prosecutor violates a constitutional right to due process. The Supreme Court held last year that accused enemy combatants have a right to confront the evidence against them. We cannot understand how journalists doing their jobs should be denied that same basic right.
We believe we must protect our sources when we grant them confidentiality, an obligation we take seriously.
This post will take on the inaccuracies in Mr. Pearlstine's statement, with particular attention to the bolded portions.
In any endeavor, the best place to begin is at the beginning. Perhaps the most amusing of the many distortions practiced by the journalistic community is to claim the existence of some sort of "shield law" as a defense against federal prosecutors or grand juries. This is arrant nonsense.
As Mr. Pearlstine noted, 49 states and the District of Columbia have some form of shield laws. It is a well-known maxim that the states can add to the Constitutional rights enjoyed by private citizens, but they cannot detract from them. These additions, however, only apply at the state level. They are meaningless at the federal level. There is no federal shield law.
Notably, the Supreme Court looked at journalistic privilege in 1972. It, in fact, gave it the Hairy Eyeball:
In 1972, for the first time, the Supreme Court addressed the right of journalists to protect their sources, when it decided Branzburg v. Hayes, a combination of four cases in which reporters had received grand-jury subpoenas. (Two of the cases involved the Black Panthers; the two others concerned drug dealers.)
Justice Byron White’s opinion for the five-to-four majority began, “The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of the press guaranteed by the First Amendment. We hold that it does not.” White’s opinion was a scathing dismissal of the journalists’ position. “The preference for anonymity of those confidential informants involved in actual criminal conduct is presumably a desire to escape criminal prosecution, and this preference, while understandable, is hardly deserving of constitutional protection,” he wrote. In short, he held for the Court that the First Amendment provides no “exemption from the ordinary duty of all other citizens to furnish relevant information to a grand jury performing an important public function.” In a brief concurring opinion, Justice Lewis Powell suggested that under certain circumstances—which he defined vaguely as criminal investigations that were “not being conducted in good faith”—journalists might be justified in refusing to testify.
The reaction of lower-court judges to Branzburg was unprecedented in American legal history. Many federal courts simply ignored the Supreme Court’s opinion. “There were some extremely capable First Amendment and mass-media lawyers who were able to spin a win out of a loss, by persuading courts to follow Powell’s concurring opinion instead of White’s majority opinion,” Rodney Smolla, the dean of the University of Richmond School of Law and the author of “Free Speech in an Open Society,” said. “Instead of citing White’s rejection of the privilege, many lower courts used the Powell opinion to create a balancing test. These judges would evaluate, on a case-by-case basis, whether they thought a subpoena to a journalist was legitimate, and they wound up quashing a lot of them.”
Watergate followed shortly after Branzburg, and leakers were all the rage. So, it seemed, was a sort of 'judicial nullification' of Branzburg: many lower court judges continued to deal leniently with journalists despite the clear (note, not "murky" as defined by Pearlstine) 1972 precedent. Enter Richard Posner in a 2003 case that breathed new life into Branzburg:
In McKevitt v. Pallasch, a case that grew out of the prosecution in Ireland of an alleged I.R.A. terrorist named Michael McKevitt, Posner took a fresh look at the Supreme Court’s decision in Branzburg. A key government witness in the case was David Rupert, an F.B.I. informant who was widely reviled among supporters of the I.R.A.’s cause. Abdon Pallasch, a reporter for the Chicago Sun-Times, and several colleagues were writing a biography of Rupert, and they had tape-recorded interviews with him. McKevitt wanted his lawyers to have access to the tapes, and Rupert did not object. But the reporters wanted to keep the tapes secret, because, as Posner put it, “the biography of him that they are planning to write will be less marketable the more information in it that has already been made public.”
Posner ruled that the journalists had to turn the tapes over to the defense. Reviewing interpretations of the law since 1972, Posner wrote, “A large number of cases conclude, rather surprisingly, that there is a reporter’s privilege.” He added dryly, “These courts may be skating on thin ice.” According to Dalglish, of the Reporters Committee for Freedom of the Press, “Prosecutors and civil litigants who want reporters to testify have really felt empowered, largely, I think, because of Judge Posner. He said, ‘Everybody go back and reread this case. Branzburg is just not there as a decision that helps the press.’ ”
But what about confidentiality of sources? This is the argument made so passionately by reporters and by the editors of Time and the NY Times. Many (myself included) have argued that this is a promise that never should have been made.
Each citizen has a duty to obey the law. A journalist does not give up his or her citizenship when he gathers the news. He does not cease to enjoy the benefits of living in society, so he certainly should not be allowed to voluntarily renounce the duties owed by each citizen to society. We would not allow him to start running red lights so he can file a news story on time, yet journalists have argued (and continue to argue) that they should be allowed to witness and yet not report serious crimes while on the job. They have argued, as they did in the Plame case, the right to shield a leaker who (if their story is correct) himself has broken the law by leaking the name of a "covert" agent. This makes the reporter not a whistleblower, but a criminal and the reporter, not a courageous crusader, but an accessory after the fact to a crime. No less an authority than the Supreme Court agrees with this reasoning:
The First Amendment instructs Congress to “make no law . . . abridging the freedom of speech, or of the press,” but the Supreme Court historically has been reluctant to treat the press clause as meaningfully distinct from the speech clause. As Rodney Smolla says, “The Court has generally been unwilling to say that journalists have more rights than other citizens. Whenever the Court has had cases about access to courtrooms or disaster sites, it talks about the right of the public to be there, and journalists are just part of the public. The idea behind the cases is that everyone should be treated the same.”
This principle has made it difficult for journalists to persuade courts to recognize a special privilege to protect them from testifying. “When you look at other privileges, like attorney-client or doctor-patient, they arise out of confidential relationships that have a formal quality to them, and there is a powerful and ancient interest in promoting candor,” Smolla said. “If you have a journalistic privilege, it might apply to everyone a journalist meets in reporting a story, even if he has no preëxisting relationship with them. The journalist can make the promise of confidentiality on the spot, as needed. The courts are loath to hand that kind of power to journalists to put information off limits.”
Part of the problem with journalistic privilege is its blanket nature - it represents ultimate power with no check. As these two stories demonstrate, there is no internal sense of responsibility or accountability in the journalistic community to keep it within bounds.
Howard Kurtz notes the recent kidnapping of Christian Science Monitor reporter Jill Carroll:
Should major newspapers and networks have agreed to suppress the news that Christian Science Monitor stringer Jill Carroll had been kidnapped in Iraq? The impulse is understandable, given the Monitor's plea that publicity might endanger negotiations to win her freedom. But since when are journalists in the business of sitting on news? And would they have imposed a 48-hour blackout for a non-journalist?
"It created the appearance of one group of people taking care of themselves above anyone else," says Sig Christenson of the San Antonio Express-News, who once covered the kidnapping of a Halliburton contractor. Christenson, the president of Military Reporters and Editors, says one contractor told him last week "he was mad because there was one rule for us and one rule for everyone else over there."
Enter the NY Times with the spin:
But New York Times Executive Editor Bill Keller told Slate it "was not exactly groundbreaking news that people get kidnapped in Iraq. I think the request would -- certainly ought to -- get the same consideration whether the person abducted was a journalist, an aid worker, a contractor or a soldier." [Ed. note: Yes, it should...but does it?] And there's the rub: Who wants to be the one who writes the story that increases the chance that terrorists will murder an American?
Answer: the NY Times. You've probably heard that Hillary Clinton is making a big fuss over that "secret" Pentagon report that was leaked, saying 80% of Marines who died in Iraq had died up upper-body wounds.
I'll bet you even heard the part about how if they'd only had the proper body armor, their lives could have been saved. But did you hear this?
Well, here's the comparison to think about: I've been told by a senior Marine officer in Iraq that the Times ignored multiple requests to not publish the details of body armor vulnerability in order to protect the lives of US service members. (And what I quoted was just a single example: the article, for example, actually come complete with a graphic, for God's sake.)
So here is a glimpse of the Times' "journalistic ethics":
When it involves a journalist, they will engage in a complete media blackout for 48 hours.
When they are asked not to reveal sensitive details of exactly how to kill US Marines, they not only go ahead and do so, but helpfully provide a diagram., just in case the terrorists aren't sure just where to aim.
And these people want us to trust their judgment about whether or not leakers of classified information have honest motives or not?
They want the right to shield criminals from prosecution?
I know what I think of that idea.
7 Comments:
By 
Cassandra, at
Mon Jan 16, 05:48:00 PM:
Even I was mildly shocked that they would do this.
What are they thinking? I guess they're not even worried about appearances any more. So much for "we support the troops".
By TigerHawk, at
Mon Jan 16, 09:24:00 PM:
Wow. I saw the body armor diagram, but I admit I was too dense to think that it might actually have conferred useful information. It is more than a little shocking that the Grey Bitch went ahead and published that detail over a DoD request that they refrain. I'm sure they rationalize it by arguing that they are preventing future deaths by holding military planners "accountable" now. No doubt they believe that military planners don't care about their own soldiers, and would only redesign body armor after criticism in the press.
By Cassandra, at
Tue Jan 17, 04:56:00 AM:
You can rationalize almost anything if you try hard enough.
What bothers me is this: what possible good could it do to provide a diagram like that, weighed against the possible harm?
And what on earth makes the NY Times (hardly military experts) think they are capable of judging all contingencies when human lives hang in the balance? Did it not occur to them to take great care?
After all, I can "rationalize" to myself that many of our guys are getting killed by IEDs, which are hardly precision weapons and cannot be aimed, in which case a diagram is irrelevant.
But that isn't much comfort to the widow whose husband gets killed by small arms fire while patrolling in al Karmah, now is it?
We've lost 7 so far this month to small arms fire this month, and it's only the 16th. Multiply that number that out by several months, project into the future, and ask yourself what will happen if only a few snipers get a hold of that diagram and get better at what they do. The NY Times has just negated the benefit of that body armor.
But I guess that wasn't enough of a "consideration" for the Times compared to the life of a single journalist.
By Cassandra, at
Tue Jan 17, 05:04:00 AM:
I know people think I'm harping on this topic TH, but for Christ's sake, those are our own getting shot at out there.
I can't even begin to tell you how wrong this is. Even if the Marine Corps hadn't asked them not to go to print, they shouldn't have done it. First of all, the study was classified.
I'm tired of everybody and their Uncle Fred decided they know best about what ought to be classified.
I've said it before: The NY Times is not an oversight committee.
Hillary knows that, and any reporter who accepts and prints classified information should be brought up on charges. The first question out of their mouths should be: "Why didn't you go to the oversight committee? I AM NOT CLEARED TO RECEIVED THIS INFORMATION."
This isn't brain surgery.
By Cassandra, at
Tue Jan 17, 05:05:00 AM:
Here's a simple analogy for you: It's like when you find a lost wallet.
If you're honest, you don't keep it.
You return it to its rightful owner.
By TigerHawk, at
Tue Jan 17, 06:21:00 AM:
As you know, we occasionally disagree at the boundaries of this question. The classification rules have been abused in the past to protect the rear quarters of people who should not be protected. I therefore think that the system requires some nuance at the edges. I was very disturbed by the first bit of the post, in which you recounted that Pat Fitzgerald had leveraged Sarbanes-Oxley in the Plame dispute. While I do not care too much about the underlying situation, it may happen again in a case such as The Pentagon Papers, which no way and no how substantively risked national security.
But, I cannot for the life of me understand how the details of the body armor contributed in any important way to this story. It seems that the disclosure was motivated purely by competitive zeal or worse: unreconstructed arrogance.
By Cassandra, at
Tue Jan 17, 05:48:00 PM:
You omit the possibility of malice. I don't.
Anyway, that's an interesting question, TH.
I don't much care for Sarbanes-Oxley. But on the other hand, newspapers are corporations and journalists are agents of the corporations they work for. Perhaps I am grossly oversimplifying things here, but this seems to be an extension of agency law (in the civil sphere) that says if the Board of Directors aids and abets an employee in the commission of a criminal act, they will also be held liable. This matters, when often a reporter would comply with a grand jury subpoena but is bolstered by the backing of a powerful corporation like Time-Warner or the NY Times.
It's a creative use of law, but I suppose it is a judge's job (or perhaps a jury's) to decide under what fact patterns it is merited.
Perhaps the corporation can discharge its duty by firing the employee, but if they choose (like the Times) to retain the employee and use their own legal staff to defend him, are they not aiding and abetting?
I'm not arguing their position, I'm asking a question.
You know, a lot of times I throw stuff out there and you guys just blindly assume (God knows why) that I approve of the action cited.
IN THIS CASE, I USED THE WORD "STRONG-ARM", which in any dictionary I know has a rather strong perjorative connotation. Both you and Screwy several times have just sort of jumped to the conclusion, on no evidence that I can discern, that I favor something when I've said nothing to give that impression. If you search the entire first half of my post, nowhere do I give any indication of any feeling about the use of Sarbanes-Oxley by Fitzgerald that is positive.
In fact, if anything, it is rather the opposite.
The first opinion I give is towards the end of the post where I say promises of confidentiality are promises "that should never have been made."
I didn't even offer much of an opinion about the Marine body armor thing, in fact. The only area where I expressed an opinion was here:
Each citizen has a duty to obey the law. A journalist does not give up his or her citizenship when he gathers the news. He goes not cease to enjoy the benefits of living in society, so he certainly should not be allowed to voluntarily renounce the duties owed by each citizen to society. We would not allow him to start running red lights so he can file a news story on time, yet journalists have argued (and continue to argue) that they should be allowed to witness and yet not report serious crimes while on the job. They have argued, as they did in the Plame case, the right to shield a leaker who (if their story is correct) himself has broken the law by leaking the name of a "covert" agent. This makes the reporter not a whistleblower, but a criminal and the reporter, not a courageous crusader, but an accessory after the fact to a crime. No less an authority than the Supreme Court agrees with this reasoning.
Part of the problem with journalistic privilege is its blanket nature - it represents ultimate power with no check. As these two stories demonstrate, there is no internal sense of responsibility or accountability in the journalistic community to keep it within bounds.
Not much opinion, for a very long post.
I have a feeling far more was inferred, however, than I ever actually said.
