pageok
pageok
pageok
Journalists' Privilege:

If you're interested in the subject and are in the D.C. area, you might want to check out this panel next Tuesday, April 29, at 12 noon at the Mayflower ($20, lunch included). Click here to register.

The panelists will be Prof. Lillian BeVier (Virginia), Prof. Lee Levine (Levine Sullivan Koch & Schulz and Georgetown), our own coconspirator Erik Jaffe, and Andrew Hruska (King & Spalding); Rachel Brand, former Assistant Attorney General, Office of Legal Policy will moderate. The event is put together by the Free Speech & Election Law practice group of the Federalist Society -- I'm one of the board members of the practice group, and I'm sure the program will be both interesting and balanced. Here's the brief summary from the e-flyer:

A number of high profile court orders in the recent past have demanded reporters divulge confidential sources or face contempt charges. In response, both the House and the Senate have considered versions of a federal "reporters' shield" law to supplement the common law privilege often extended to reporters to keep sources confidential. This topic provokes a number of questions about the role of the press and whether it should be treated more leniently, the issue of who is "press," the proper balance of governmental confidentiality and the "public right to know," and the ability of law enforcement and national security experts to pursue leakers of confidential or classified information.

Is a federal reporters' shield law a good idea? How broadly should it reach? Should it protect professional journalists only or extend to ad hoc writers and bloggers, and if so, where and how is a line to be drawn? Are there other ways to balance reporters' and sources' interests with law enforcement? Is there a better mechanism than contempt to employ?

Roscoe B. Means:
It's a BAD idea. There is no rational place for a line to be drawn. The suggestion that it apply to "professional journalists" just begs the question, and makes for even more litigation about a distinction that should be immaterial. The law is entitled to everyone's evidence, or to no one's. We've already put too many holes in that principle because of countervailing interests, but I don't even see a credible argument for the existence of such an interest when it comes to journalists.
4.23.2008 4:21pm
Just an Observer:
Roscoe,

I assume that under the firm principle you articulate, you believe that existing privileges such as those enjoyed by attorneys and physicians should be eliminated?
4.23.2008 4:26pm
PersonFromPorlock:
The media's "poor little us" whingeing is just a bit off-putting; they're hardly without resources. If they were, for instance, suddenly to become intensely interested in the finances of some congressman who's trying to compel testimony from a journalist, I'm sure a principled compromise on journalistic privilege could be worked out.
4.23.2008 5:04pm
Thorley Winston (mail) (www):

Is a federal reporters' shield law a good idea?


No and neither for that matter is the common law privilege extended by some States to "journalists." They ought to have to comply with a lawful subpoena the same way as any other citizen.
4.23.2008 5:28pm
TGGP (mail) (www):
Just an Observer, my answer (along with Milton Friedman's) is yes. Abolish all special privileges.

As far as I'm concerned, journalists have the same obligation to comply with a subpoena as anyone else: none at all.
4.23.2008 5:35pm
Roscoe B. Means:

I assume that under the firm principle you articulate, you believe that existing privileges such as those enjoyed by attorneys and physicians should be eliminated?

It would more accurate to say that I'm not firmly convinced that the interests supposedly advanced by those privileges actually require them, or that the benefits are worth the costs the privileges inflict on the truth-seeking functions of the courts. But they differ greatly from a "journalists privilege," because they generally apply only to communications with people who have licenses or the equivalent, and the relationships they protect are usually formalized in some way. And they're meant to protect a relationship with an identifiable, existing client or patient, not to promote the lawyers' or doctors' business interests in soliciting more clients or patients.

The "journalist's privilege" would necessarily be different in all of those respects, and probably others. It can't be limited to "licensed journalists" without first creating a licensing scheme that probably fall to First Amendment challenge. The relationship with "sources" is rarely formalized, so it could falsely be asserted with impunity. And the purpose of the privilege, in reality, would be to promote the careers of journalists by empowering them to promise secrecy to an endless supply of future informants. Journalists would undoubtedly argue that their ability to keep sources secret advances the public interest in free flow of information, but I happen to think that's nonsense. It might in some cases, and it wouldn't in others, and I see no way to calculate that the former would be more frequent than the latter.
4.23.2008 6:17pm
Harry Eagar (mail):
I've been a newspaperman since 1966, and only twice have I been subpoenaed.

Once I argued to the judge that the defendants could get the same information elsewhere and didn't need me, and he bought that.

Another was more complicated, but I ducked under that one, too.

So I've never faced one of the really, really tough ones, such as described in 'Somebody is Lying.' That newspaperman went to jail for a long time.

My position is, I'm satisfied with the same rights other Americans have. If it comes to answering the subpoena or protecting a source, I hope I'd have the guts to stay in contempt of court.

Goes with the territory.

More generally, if you have to write out your code of ethics, you're already in trouble.
4.23.2008 6:28pm
common sense (www):
It seems that if there were a journalist privilege, then that would be a good way to avoid the law. I could say false things to the reporter, those things (especially if politically juicy) would be published, and there would be no recourse against me. Especially if I'm a well placed source within an administration.
4.23.2008 6:34pm
tarheel:
There are good arguments for and against a privilege, but I am not sure the definitional problem needs to be such a big concern.

North Carolina's shield law defines a journalist as: "Any person, company, or entity, or the employees, independent contractors, or agents of that person, company, or entity, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium." This seems broad enough to cover anyone who should be covered, and there has been very little litigation over the issue as a result.

On the broader issue, Harry has it right. I think it is at least a fair reading of the First Amendment to argue that the government should not be able to make their first step in any investigation a subpoena for the local investigative reporter. If it can't get the information any other way, then that is different, but no one wants the government to outsource investigative work to reporters.

For what it's worth, one of the best media commentators out there is against the shield law, as are many in the field.
4.23.2008 6:46pm
Elliot123 (mail):
"This seems broad enough to cover anyone who should be covered, and there has been very little litigation over the issue as a result."

Should a blogger be covered? Does being in the business of gathering, compiling, etc. mean one must be engaged in commerce?
4.23.2008 7:41pm
MDJD2B (mail):
If you see Governor Spitzer at the Mayflower, say "Hi" for me. I read in the paper he likes to hang out there.
4.23.2008 7:59pm
Mike S.:
One might favor such a privelege if the use of anonymous sources was limited to people blowing the whistle on public corruption. But when was the last time a reporter faced a supboena issued at the request of a currupt official to expose a whistle blower? Did even Richard nixon attempt to sbpoena Bernstein and Woodward to find out who Deep throat was?

In the recent cases I remember the protected sources have been high government officials who revealed the identity of a CIA agent, law enforcement officials who were smearing apparently innocent people (the anthrax case, the Atlanta Olympics, Wen Ho Le) and others whom reporters should not be protecting. Not to mention the many trivial uses of anonymous sources unlikely to end up in court: football coaches offering their opinion on the skills of opposing players, campaign officials offering scurrilous gossip about other candidates, bureacrats leaking sensitive information in turf wars, people floating trial balloons and political stffers trying to grab an extra news cycle by "leaking" the contents of tomorrow's announcement.

Come to think of it, that might be a fair trade: a privilege for those protecting whistleblowers in exchange for a requirement to identify all other sources.
4.23.2008 9:55pm
jccamp:
Harry E.,

Thanks for a rational post. If the government can prove to a judge that there's a genuine governmental interest, and that the information cannot be obtained elsewhere, then the reporter needs to make a personal decision. Other remedies available to the government or failing to substantiate the public interest in disclosure would let the journalist off the hook. Not necessarily codified, but pretty much how it works now, yes?

As a secondary issue, i would worry about persons who might hide behind the journalist label, and use the proposed shield to invent or malign via fictitious "sources." Room for lots of mischief by granting an advance lack of accountability.

So, bad idea.
4.23.2008 11:41pm
K Parker (mail):
tarheel,

Maybe I'm just misreading you, but it sure seems like Harry and you are coming at this from opposite sides, rather than being in agreement. He is saying (and bless him, what a wonderful statement he makes) that journalists shouldn't get any special privileges that aren't available to any other citizen; you seem to speak approvingly of NC's shield law, which does exactly that.
4.24.2008 3:10am
Harry Eagar (mail):
To expand, in most cases it seems to me that the government can get any information a journalist can get. It can use force; all I have is persuasion.

(If the government uses force, and I submit, than that might ruin my credibility and ability to persuade the next interview subject, but while that is a real problem, I don't see it as affecting my position.)

If potential informants distrust the government and won't talk, that's not my problem.

Where it gets sticky is when a journalist has information that the government cannot get: notably, photos or videos of events. This is more often an issue for television than for print, and I've never had to deal with it.

But it would be similar to the government's subpoenaing my notes (not that anybody else could read them) to try to find out what I didn't report.

I'm not sure what I think about this.
4.24.2008 3:54am
Larry Fafarman (mail) (www):
". . .both the House and the Senate have considered versions of a federal "reporters' shield" law to supplement the common law privilege often extended to reporters to keep sources confidential."

The House has done more than just "consider" a "reporters' shield" bill -- the House passed such a bill, HR 2102, by a vote of 398-21 in October 2007. The organizers of this conference are just not up-to-date. Related bills, S 1267 and S 2035, are pending in the Senate. S 2035 picked up 7 co-sponsors in April 2008 alone, including Senators Clinton, Obama, and Boxer, bringing the total number of co-sponsors to 13. IMO the exceptions in these bills are so broad that these bills would provide very little protection to reporters -- for example, there is a general exception for where it is believed that a crime has been committed and there is no other source of information, but that is precisely the most likely situation where the reporters' privilege is needed. All or many BVD-clad (pajama-clad) bloggers are covered by these bills -- HR 2102 requires only that the reporting provide a "substantial portion of the person's livelihood"(whatever that is) or "substantial financial gain" (whatever that is) and S 1267 and S 2035 have no income requirement. Some BVD-clad bloggers are paid to blog and others get income from advertising on their blogs. BVD-clad bloggers want privileges without responsibilities -- they want the reporters' privilege but don't want, say, a "fairness doctrine" prohibiting arbitrary censorship of blog visitors' comments.
4.24.2008 9:59am
tarheel:
I only cited the NC law as an indication that the definitional problem is not much of a problem. I actually worry that a federal law will end up creating more problems than it solves. Before the Miller/Plame fiasco, the combination of state shield laws (32 of them) and a DOJ policy that sought subpoenas only when the government could not get the information any other way pretty much too care of the issue. That is my real concern, though -- government should not be in the business of opening a reporter's notebook just because it is too lazy or incompetent to do the investigation itself.

I should note that the Times' decision to fight the Miller case to the end was a terrible one for the media because it tipped what had been a fairly stable applecart and put some terrible opinions on the books.
4.24.2008 10:02am
Larry Fafarman (mail) (www):
The e-flyer for the conference says,
Should it protect professional journalists only or extend to ad hoc writers and bloggers, and if so, where and how is a line to be drawn?

My blog has four articles on that subject.
4.24.2008 11:34am
interested observer:
Larry Farfarman,

I would argue that the "for a substantial portion of the person's livelihood" language in H.R. 2102 means the statute would not cover most bloggers. I think S. 2035 would.

On the need for a shield law: I don't think we should protect journalists from disclosing the identity of confidential sources when the source leaked the information illegally (the Libby fiasco). But more than 3,000 subpoenas were issued to news organizations last year. That creates a hostile environment for the journalist/source relationship and could erode coverage of important issues. RonNell Andersen Jones has a forthcoming study that should be interesting. See http://ajr.org/Article.asp?id=4511.
4.24.2008 12:05pm
sbw (mail) (www):
Harry E: More generally, if you have to write out your code of ethics, you're already in trouble.

Worth repeating.
4.24.2008 1:20pm
Larry Fafarman (mail) (www):
Tarheel said (4.24.2008 9:02am) --
I only cited the NC law as an indication that the definitional problem is not much of a problem.

Tarheel,

The definitional problem is much of a problem! You said in a previous comment (4.23.2008 5:46pm),

North Carolina's shield law defines a journalist as: "Any person, company, or entity, or the employees, independent contractors, or agents of that person, company, or entity, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium."

Nothing in there requires that the shielded person be a professional reporter. "Independent contractors" and "agents" are not necessarily professionals. The questions of whether only professional reporters should be shielded and who qualifies as a professional reporter or should be treated the same as a professional reporter are very important questions.

government should not be in the business of opening a reporter's notebook just because it is too lazy or incompetent to do the investigation itself.

It is not just a matter of the government being "too lazy or incompetent" -- often the government has no way of obtaining the information other than by "opening a reporter's notebook."

I should note that the Times' decision to fight the Miller case to the end was a terrible one for the media because it tipped what had been a fairly stable applecart and put some terrible opinions on the books.

It is not easy to tip a fairly stable applecart -- the applecart was probably unstable.

IMO the exceptions in the shield laws now pending in Congress -- e.g., it is believed that a crime has been committed, there is no source of information other than the reporter -- make these bills nearly worthless to reporters. In situations where a shield law is most needed, these pending shield laws would not enable reporters to give their prospective sources credible promises of confidentiality.
4.24.2008 2:50pm
tarheel:

It is not just a matter of the government being "too lazy or incompetent" -- often the government has no way of obtaining the information other than by "opening a reporter's notebook."

Under almost every state law, the proposed federal law, and the loosest reading of Branzburg's 4-1-4 opinion, if there is no other way to obtain the information then the government can force the journalist to testify (assuming the other elements are satisfied). You may not like it, but that exception will always be there. I am much more concerned about the government making journalists the first stop instead of the last.
4.24.2008 3:06pm
tarheel:
On the definitional issue, if you believe in the shield law I just don't think you can reasonably argue that only "professional" journalists of a certain type qualify. In this context, "professional" is a meaningless term (and I am one of the few people on this board who regularly supports the MSM). To limit protection to "professionals" means that someone is going to have to certify a "professional" journalist. That idea scares me.
4.24.2008 3:13pm
wfjag:
tarheel:

I'm having more than a small problem following your intrepretation of the NC law. Maybe you know more about jurisprudence on it and/or if there are other definitions (which, since I'm not in NC, I'm too lazy to look up).

One way of reading the statute, it appears to cover almost no one. Another way, it covers essentially everyone.


"engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium."


Do I read the phrase "engaged in the business of" as a qualifier for the entirety of the definition, including "or processing information for dissemination via any news medium" -- in which case, BVD clad bloggers aren't going to be covered, since that activity is more likely to be held to be a hobby and not a business.

Alternatively, do I read the definition as seperate, independent clauses of "engaged in the business of gathering, compiling, writing, editing, photographing, recording" -- what most of us think of when thinking of reporters -- and, a second independent clause of "or processing information for dissemination via any news medium." - in which case, the scope of the second independent clause is determined by the definition of "any news medium" -- and a strong argument can be made that BVD clad bloggers are part of a "news medium", even if all they do is re-post others' reports or make snarky comments on others' blogs.
4.24.2008 4:23pm
Harry Eagar (mail):
Me, too.

I read the MSM bashers, too. Here's an exercise for a rainy afternoon.

Take you local paper. Try to find each editorial item on the web. Finding it on the newspaper's own website doesn't count. If you can't find it, circle it in red.

All that red is what you don't know about your community without the MSM.

You may not care about most of it, but that's not the issue, is it?
4.24.2008 4:29pm
The Unbeliever:
I assume that under the firm principle you articulate, you believe that existing privileges such as those enjoyed by attorneys and physicians should be eliminated?

Isn't the difference that one is meant to enable the protected service provider to better assist their client, while the other just lets the protected person get more business? A doctor can't adequately treat his patient if the patient does not provide all medical information; an attorney can not best defend his client if he does not know the whole story. What service does a journalist provide an anonymous source that is in danger if the source's identity is not completely secret?

I understand the analogy argument, that patients and defendants are hurt without the privacy protection and so are sources that are exposed, but no one forces a source to talk to a journalist. Presumably the journalist may suffer if they can't get people to talk to them, but that hardly seems to be an interest overriding the court's perogative.

Doesn't this mean we are implicitly acknowledging that every anonymous leak/source has an ulterior motive, and we want to protect a quid pro quo system that encourages decentralization of responsibilty? Once information is publicly revealed, the very nature of that data exposes data about the person who provided it; why should we encourage the disassociation of information from its source, when called to question in a court of law?
4.24.2008 4:43pm
Larry Fafarman (mail) (www):
interested observer said (4.24.2008 11:05am) --
Larry Farfarman,

I would argue that the "for a substantial portion of the person's livelihood" language in H.R. 2102 means the statute would not cover most bloggers. I think S. 2035 would.

Well, a reporter and some members of Congress don't fully agree with you about HR 2102. A news article on HR 2102 said,

WASHINGTON--A congressional panel on Wednesday voted, against the Bush administration's wishes, to shield journalists including advertising-supported bloggers (emphasis added -- this is just the reporter's interpretation) from having to reveal their confidential sources in many situations . . .

In response to concerns raised by the Bush administration and other politicians, the revised bill attempts to exclude the "casual blogger" from reaping those benefits by stipulating the protections apply only to those who derive "financial gain or livelihood" from the journalistic activity, Boucher said Wednesday. That broad rule could, however, include part-time writers who receive even a trickle of revenue from Google Ads or Blogads.com. . . . .

. . . .But in an age in which it's relatively easy and inexpensive to slap advertisements on blogs and meet the "financial gain" standard, several politicians questioned on Wednesday whether that language will make much of a difference. Anyone "could start a blog and request advertising on that blog, and whether they get it or not, would be considered a journalist under this bill," Rep. Adam Schiff (D-Calif.) said.

Such a definition "would potentially encompass millions of people who blog or change the manner in which they blog (to gain the privilege)," said Rep. Bob Goodlatte (R-Va.), adding that the shield is "far too broad and far too easily gained for me to support that language."

Also, HR 2102 as passed says "substantial portion of the person's livelihood or for substantial financial gain." Those terms can mean anything.

BTW, at least one blog service, ScienceBlogs, pays its bloggers to blog.

A news article about the Senate Judiciary Committee debate on S 2035 said,

The term "journalism" clearly would sweep up at least some bloggers because the bill defines it thusly: "the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public."

That broad definition still gives some politicians heartburn. At Thursday's meeting, three members of the Senate committee -- Dick Durbin (D-Ill.), Dianne Feinstein (D-Calif.) and John Cornyn (R-Texas) -- said they worried about giving protection to bloggers who aren't generally expected to adhere to the same code of conduct and ethics as professional journalists (emphasis added), according to a Senate aide familiar with the debate. But they didn't propose any different language at the time, opting instead to work with the bill's primary sponsors to craft tweaks before the bill hits the Senate floor.

Although it's unclear how the final language will shake out, it could end up resembling the approach taken by a House of Representatives panel when it backed a similar bill in August. That bill's authors said they planned to add a condition restricting the reporter's privilege only to those who derive "financial gain or livelihood" from the practice of journalism. (Granted, it's relatively easy and inexpensive to slap advertisements on blogs and qualify for the privilege, so some politicians weren't impressed by that amendment.)

And one of the biggest ways in which unscrupulous BVD-clad (pajama-clad) bloggers do not "adhere to the same code of conduct and ethics as professional journalists" is by arbitrary censorship of comments and commenters.

On the need for a shield law: I don't think we should protect journalists from disclosing the identity of confidential sources when the source leaked the information illegally (the Libby fiasco).

The Plamegate scandal was very complicated, but I think that the reporter who was jailed, Judith Miller, was not the one who received the illegally leaked information (i.e., that Valerie Plame was a secret CIA agent) -- it was Robert Novak who received and published that information.
4.24.2008 4:44pm
tarheel:
wfjag: There has been very little litigation of the "journalist" definition. This may be because only reporters with MSM backing can afford to litigate, but more likely the state government is interpreting it broadly. My understanding from those who drafted the law is that it was intended to be as broad as possible. I don't think they would see the "business" language as a serious limitation, but I can't say for sure if it would cover a blogger who sells no ads and is read only by his family. Never been officially interpreted, though.
4.24.2008 5:20pm
wfjag:
Tarheel:

Sounds like you need to write a short article for the NC Bar Journal (and a layman's version for a Press Mag), become the "instant expert" on that NC law, and (hopefully) attract a few clients/cases. Spice up the article with a couple of litigous examples, e.g. "You can't discover the [husband's/wife's] blog for use in a divorce case because it falls under the Journalist Privilege", and have some fun (and maybe some profit).
4.24.2008 5:45pm
PersonFromPorlock:
Harry Eagar:

Take you local paper. Try to find each editorial item on the web. Finding it on the newspaper's own website doesn't count. If you can't find it, circle it in red.

All that red is what you don't know about your community without the MSM.


Fair enough, and not a bad test. But now, take a fresh copy of the paper and some colored pens and mark all the coverage that's slanted to the Left with red and all the inacuracies with green. Merry Christmas! and that's why so many of us have given up on the MSM.
4.24.2008 7:14pm
sbw (mail) (www):
I'm with Harry.

First thing that's worthwhile is to disaggregate. At the very least, treat the MSM as local, regional, and national. Most of your animosity applies to the national not the local press.

The second thing to do is to reclaim a little of Adam Smith's discussion on division of labor to appreciate that some specialization can be to your advantage. Journalism, well done, acts as a surrogate for you.

Finally, reflect (pun intended) that without something to mirror the community back on itself, there is no community.
4.24.2008 8:06pm
Harry Eagar (mail):
Thanks. Next time I'm entering the 8th hour of listening to testimony about whether to repair the county sewage treatment plant or build a new one, I'll remind myself that at least one other person understands that I'm serving the community in my own way.
4.24.2008 9:56pm
sbw (mail) (www):
Yeah. My four hours last night was at a school board meeting. Same dif.

Of course, we slanted what was written to the left in red, and peppered it with inaccuracies in green. ;-)
4.24.2008 10:04pm
Larry Fafarman (mail) (www):
tarheel said (4.24.2008 2:06pm) --
Under almost every state law, the proposed federal law, and the loosest reading of Branzburg's 4-1-4 opinion, if there is no other way to obtain the information then the government can force the journalist to testify (assuming the other elements are satisfied). You may not like it, but that exception will always be there.

It doesn't matter whether I like it -- what matters is whether a prospective confidential source likes it. If a prospective confidential source knows that his/her identity is likely be disclosed if the information cannot be obtained from another source, then (s)he is likely to clam up.

A lot should depend on the circumstances, e.g., has the crime already been committed or is the crime impending? How serious is the impending crime? Is disclosure of the source needed to help exonerate a defendant?

As I've already said, IMO the shield laws pending in Congress have so many big exceptions that those laws would be of little help to journalists. Also, the bills are full of inconsistencies, ambiguities, and vagueness -- for example, in HR 2102, one of the conditions for exception is: "in a matter other than a criminal investigation or prosecution, based on information obtained from a person other than the covered person, the testimony or document sought is critical to the successful completion of the matter." "Completion of the matter"? What is the "matter" here? Also, in some situations HR 2102 requires only testimony or documents from the journalist and does not require revealing the identity of the confidential source -- but how can it be assured that such testimony or documents will not reveal the confidential source? Also, a confidential source who is not familiar with the law could be deceived into giving information that is not protected.

tarheel said (4.24.2008 2:13pm) --
To limit protection to "professionals" means that someone is going to have to certify a "professional" journalist. That idea scares me.

And the idea of giving the reporter's privilege to every unscrupulous BVD-clad blogger does not scare you?

The Unbeliever said (4.24.2008 3:43pm) --
A doctor can't adequately treat his patient if the patient does not provide all medical information; an attorney can not best defend his client if he does not know the whole story. What service does a journalist provide an anonymous source that is in danger if the source's identity is not completely secret?

There are any number of reasons why a source -- e.g., a whistleblower -- would want to publicize information while remaining anonymous.

tarheel said (4.24.2008 4:20pm)--
I don't think they would see the "business" language as a serious limitation, but I can't say for sure if it would cover a blogger who sells no ads and is read only by his family.

BVD-clad bloggers can use the "independent contractors" or "agents" loopholes of North Carolina's definitions of "journalist" -- see comment of 4.23.2008 5:46pm.
4.25.2008 1:14am
The Unbeliever:
There are any number of reasons why a source -- e.g., a whistleblower -- would want to publicize information while remaining anonymous.

I understand that, but that hardly seems to override the court's interest in getting at the truth. There may be a public interest in reading insider information, but I don't see the case that the public is better served when that information is sourced anonymously, rather than putting a name to the claims.

If there is a general public interest in protecting whistleblowers, pass whistleblower laws protecting them, not the journalists who hide their identity.
4.25.2008 2:22pm
Larry Fafarman (mail) (www):
The Unbeliever said,
I understand that, but that hardly seems to override the court's interest in getting at the truth.

As you know, there are some rules and principles that sometimes prevent the courts from getting at the truth -- for example, some communications are privileged.

There may be a public interest in reading insider information, but I don't see the case that the public is better served when that information is sourced anonymously, rather than putting a name to the claims.

Often the information is not available at all unless it is sourced anonymously.

If there is a general public interest in protecting whistleblowers, pass whistleblower laws protecting them, not the journalists who hide their identity.

I just used whistleblowers as one example. And your idea of passing laws protecting whistleblowers is pie-in-the-sky whereas the shield bills in Congress are of immediate concern -- the House has already passed its version of a shield bill by 398-21 and a similar shield bill in the Senate passed the Judiciary Committee by a vote of 15-2 and is co-sponsored by 13 Senators, including Clinton, Obama, Boxer, and Schumer.
4.25.2008 4:04pm
Larry Fafarman (mail) (www):
A lot of people are unaware that BVD-clad bloggers have become a powerful special-interest group. And many BVD-clad bloggers actually think that they are better than the traditional news media! And why should blogs that arbitrarily censor comments and commenters be authoritatively cited by court opinions, scholarly journal articles, the traditional news media, etc.? WHY? BVD-clad bloggers have at least one big lobbying outfit, the Electronic Frontier Foundation. The EFF is in favor of giving the reporters' privilege to BVD-clad bloggers but does not generally believe in free speech on the Internet -- for example, a top EFF attorney, shyster Kevin Bankston, once threatened to block my emails addressed to other EFF staffers!

Ron Steinman wrote of BVD-clad bloggers,

There is a growing and disturbing movement in the media for a new freedom that promotes the idea that whoever covers news, and believes they are journalists without credentials, can and should be their own editor, writing and saying what he pleases in his self-created Web log [and also arbitrarily censoring comments from those who disagree with him]. Everywhere I turn, those who call themselves serious journalists, some even using that grand and old fashioned phrase, the press, are assaulting us with the virtues of this new-found freedom. Thus, blog, the shortened version, is now the latest gobbledygook noun in the English language. Lewis Carroll would be proud . . .

. . . .A major problem is bloggers who run items with no sources. When they cite sources, they are so tenuous as to make you pass Go and return the $200. When caught, the blog will sometimes print retractions quickly [a BVD-clad blogger is likely to just delete the comment that pointed out the error]. The problem is that the readers have become so undiscerning it makes no difference. As quickly as an item is found wrong and as quickly as the blog runs a correction, another rises to take its place. Accuracy has no place on many blogs. (bracketed comments is mine)

Carolynne Burkholder wrote,
.

Any discussion of ethical issues in the blogosphere begins with the question of whether bloggers are journalists. In March 2005 there was speculation that the courts would answer this question. Apple Computers filed a lawsuit against several California bloggers who had revealed company secrets on their websites. As journalists in California (and about 30 other U.S. states) have "shield laws" to protect them from revealing their sources, the question was whether bloggers too have this right. In his ruling, the judge side-stepped the question of whether bloggers were journalists, but the issue will probably return in the future in some legal forum . . . . .

. . . ."It isn't whether bloggers 'are' journalists. They apparently are, sometimes," wrote Jay Rosen, a journalism professor at New York University. Rosen believes that defining bloggers is not as important as looking at their ethics.

. . . . bloggers' claims that they are the true citizen-journalists and that they can self-correct their errors is questioned by journalists and ethicists as self-serving rhetoric. Critics note cases where rumours were circulated by blogs and they were not proven to be false until much damage had been done to the reputation of career of a person or group. Self-correction by blogs is an imperfect process [and is made even more imperfect by the arbitrary censorship of comments and commenters!]. Other critics accuse blogs of hypocrisy by claiming they believe in accuracy but they do not believe in editorial controls on postings prior to publication [BVD-clad bloggers also do not believe in any controls after publication]. Bloggers are also accused of wanting freedom without responsibility -- of reaching thousands of readers but rejecting calls for ethical codes and standards.(emphasis added; bracketed comments are mine)

The issue of BVD-clad bloggers' lack of ethics keeps appearing again and again.
4.25.2008 5:16pm
neurodoc:
For what it's worth, one of the best media commentators out there is against the shield law, as are many in the field.
His (Jack Shafer) best line comes at the very end: "Self-scrutiny has never been the press corps' leading virtue, and its ability to imagine itself the victim is nonpareil."
4.26.2008 12:32am
neurodoc:
MDJD2B: If you see Governor Spitzer at the Mayflower, say "Hi" for me. I read in the paper he likes to hang out there.
Hey, take some personal responsibility. You elected him to be your AG, and then your governor. :)
4.26.2008 12:35am
Larry Fafarman (mail) (www):
neurodoc said (4.25.2008 11:32pm) --
For what it's worth, one of the best media commentators out there is against the shield law, as are many in the field.

His (Jack Shafer) best line comes at the very end: "Self-scrutiny has never been the press corps' leading virtue, and its ability to imagine itself the victim is nonpareil."

IMO Jack Shafer's article is very poorly written. For example, it makes meaningless distinctions:

Ask a group of reporters or editors to tell you the difference between "confidential" and "anonymous," . . . . . . . and you will get a lot of different answers.

To most people, "anonymous source" and "confidential source" mean the same thing.

Also, he wrote,

A promise to withhold a source's name is not automatically the same thing as a promise of confidentiality, which represents a higher commitment from the reporter and his publication.

Those look like the same thing to me.

He contradicted himself by adding the following quotation (page 2) --

. . .the March 24 Washington Post editorializes, "Reporters rely on regular confidential sources to burrow into their beats; if they can be arbitrarily required to identify all their sources, it's likely they won't have any."
Also, the above Washington Post article presents a real dilemma: it may be necessary to disclose the identity of a confidential source in order to help exonerate someone -- particularly someone who was implicated by the confidential source in the first place. The exceptions in HR 2102 would not always provide protection for a wrongly suspected person -- the exceptions specifically apply only in cases of criminal prosecution or investigation ("successful completion of the matter" can mean anything) and where some incriminating information was obtained from sources other than the reporter ("covered person") --

(A) in a criminal investigation or prosecution, based on information obtained from a person other than the covered person--

(i) there are reasonable grounds to believe that a crime has occurred; and

(ii) the testimony or document sought is critical to the investigation or prosecution or to the defense against the prosecution; or

(B) in a matter other than a criminal investigation or prosecution, based on information obtained from a person other than the covered person, the testimony or document sought is critical to the successful completion of the matter

The above provisions would not necessarily protect someone whose reputation has been damaged but who does not face criminal investigation or prosecution.
4.26.2008 6:21am
Kirk:
Harry and sbw,

I think you're doing yourselves, and the papers that employ you, a disservice by trying to dismiss the media audience's discontent so easily. Beyond the glib comment from PfP, there genuinely are serious issues with accuracy and fairness that won't go away. I think we've all had the experience (reporters like yourselves included) of reading a story where we are experts on the subject, and thinking, "That's not remotely correct", and also "No one who had the slightest understanding of the subject would summarize it for a lay audience that way".

Add to that the nearly-universal template of Conflict Sells, and you get abominations such as in the recent coverage of the loss of the Alaska Ranger. First, check out the coverage from the owner company's home-town paper, the Seattle P-I, which is mostly an example of how to do it right.

This article mentions that The Fishing Company of Alaska had been in some controversies with NMFS, and had been assessed a large fine. This is quite true in fact. But it's also true that FCA went to court and was fully vindicated, in that not only was the fine overturned, but the court ordered NMFS to stop enforcing the particular regs under which FCA had been fined.

Here's the problem: I couldn't find a single other news story that didn't omit this second part of the context. Even if this was completely unintentional on the part of the AP and the rest, what does it say about the mentality of the editors who would shorten a story by leaving in the part of a paragraph that reflects badly on its subject and omitting 100% of the part that mentions their complete exoneration?
4.26.2008 3:16pm
Harry Eagar (mail):
I approach that from a different perspective.

It's too easy to get regulator database first entries, too hard to get complete files. Reporters use them because they can get them, not because they are helpful. (NTSB investigators have a terrible time trying to get reporters to stop jumping to conclusions.)

The real problem with the Ranger stories was that somebody successfully prevented the survivors from meeting the press. Bad idea.

You know what the No. 1 claim of bias against newspapers is?

That it favors one high school's sports teams over all the others.

No kiddin'. Nobody blogs about it, but it's a standing joke at every paper.
4.27.2008 4:40pm