MaxedOutMama
Tuesday, December 28, 2004
Imperfect Justice
Senator Christopher Dodd makes an important point in this column in the Washington Post about the importance of preserving a free press. He points out that the number of prosecutions of reporters to force them to reveal the identities of their sources is increasing:
Our entire justice system, as established by the Constitution and various rulings of the Supreme Court, acknowledges that to preserve justice we will sometimes let misdoers escape punishment. We should never lose sight of this fact and this underlying principle. To say that a reporter must always break confidentiality when a potential crime is being investigated means that a reporter has no right to preserve confidentiality at all. One can rest assured that some entrepeneurial prosecutor with a creative bent will almost always be able to come up with an interpretation supporting a criminal investigation if necessary.
In writing this article Senator Dodd is upholding his duties as a Senator, and I hope that many people will read his column and consider his statements. All governments will contain some corrupt officials, and will at times misuse their power. Our constitution is designed to allow the voters time to correct such corruption before it can entrench itself - but as Senator Dodd observes, these protections mean nothing if the public does not know what is transpiring:
Update:
As often happens, the comments on this one are better than the original post. In particular, Dingo had previously suggested a necessary exception to the confidentiality rule. His post is here.
According to the Reporters Committee for Freedom of the Press, 22 reporters have received federal subpoenas this year alone, compared with an average of fewer than nine per year from 1991 to 2001(emphasis added). Reporters who have refused to reveal their sources, such as Judith Miller of the New York Times and Matthew Cooper of Time magazine, face the prospect of prison time. On Dec. 9, Jim Taricani of WJAR-TV in Providence, R.I., was sentenced to six months' home confinement for refusing to divulge a source.Senator Dodd is calling for a federal law to protect reporters' ability to preserve the confidentiality of their sources. I think he makes a good point. Opponents will argue that confidentiality may be used to cloak criminality, but I think that is merely a necessary byproduct of freedom of the press. To argue the point another way, if only a reporter has knowledge of a crime from an informant, than the crime would never have been prosecuted. The only change in the situation due to the reporter's non-disclosure is that the public has more information.
Our entire justice system, as established by the Constitution and various rulings of the Supreme Court, acknowledges that to preserve justice we will sometimes let misdoers escape punishment. We should never lose sight of this fact and this underlying principle. To say that a reporter must always break confidentiality when a potential crime is being investigated means that a reporter has no right to preserve confidentiality at all. One can rest assured that some entrepeneurial prosecutor with a creative bent will almost always be able to come up with an interpretation supporting a criminal investigation if necessary.
In writing this article Senator Dodd is upholding his duties as a Senator, and I hope that many people will read his column and consider his statements. All governments will contain some corrupt officials, and will at times misuse their power. Our constitution is designed to allow the voters time to correct such corruption before it can entrench itself - but as Senator Dodd observes, these protections mean nothing if the public does not know what is transpiring:
If reporters are unable to promise confidentiality to their sources, many conscientious citizens will choose not to come forward with information out of fear for their jobs, their reputations, even their lives. The public's ability to hold those in power accountable -- whether in the government or in the private sector -- will be severely compromised. In a real sense, when the public's right to know is threatened, so are all of the other liberties we hold dear(emphasis added).This is true. Of what value is your vote if you are deprived of information about what is really happening?
Update:
As often happens, the comments on this one are better than the original post. In particular, Dingo had previously suggested a necessary exception to the confidentiality rule. His post is here.
Comments:
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I actually wrote a peice about this issue and when a reporter should and should not have immunity.
If you would like to read it, it is here:
http://barkingdingo.blogspot.com/2004/11/valerie-plame-connection.html
If you would like to read it, it is here:
http://barkingdingo.blogspot.com/2004/11/valerie-plame-connection.html
As ususal, you raise some excellent points.
However, reporters are a protected group. Does that mean there should in no way be any form of accountability? In other words, what is to prevent a journalist from misreporting or even lying about a story, to further an agenda?
Just as all other groups that are protected (lawyers, doctors, even licensed tradespeople), should not journalists be held accountable?
The Dan Rather matter still bothers me.
SC&A
However, reporters are a protected group. Does that mean there should in no way be any form of accountability? In other words, what is to prevent a journalist from misreporting or even lying about a story, to further an agenda?
Just as all other groups that are protected (lawyers, doctors, even licensed tradespeople), should not journalists be held accountable?
The Dan Rather matter still bothers me.
SC&A
# posted by 
: 9:57 PM
: 9:57 PM
SC&A,
Well, Dingo certainly draws one bright line - when the story itself is being used to commit a crime, it seems reasonable to demand disclosure. That's a very good post.
I can't say that some of Dan Rather's reporting hasn't irked me, but the memos in that last escapade were quickly exposed as forgeries. In general, more access to information is going to allow critical examination from a large number of sources, some of whom will have the motivation to offset misstatements. Certainly there are going to be some injustices and abuses by the press, but I believe the average individual in this country is capable of weighing what they read and assessing it critically.
For instance, the LA Times let loose the dogs of sexual harrassment right before the recall election in CA, but yet the voters ignored the story and elected Schwarzenegger. Our entire constitutional system is based on the idea that the average citizen has some brain power and some willingness to use it, and in my experience, they do.
My guess is that the most blatant abuses of the press occur in the field of psuedo-scientific reporting, or anything story with numbers, because a lot of people simply turn off their brains when they see numbers.
Senator Dodd is particularly directing our attention to the lack of federal protections for the press in contrast to explicit protection at the state level. This is particularly relevant because the President appoints US Prosecutors, and so it seems as if this part of the justice system has a relatively high potential for misuse.
I remember some squawking from the Republicans when Clinton came in and replaced a bunch of US Prosecutors, but I sure haven't seen any talk about this vulnerability lately from the Republicans. Maybe Bush didn't do the same thing, or maybe he did and they just think it's a great idea now - but given the trend towards an imperial presidency and a spineless Congress, I think we need a pretty powerful press to offset such potential abuses of power.
I guess I'm advocating the lesser of two offsetting evils here - and Dan Ratherism is definitely less intimidating than the power of the federal government. We the people can counter a Dan Rather's excesses for the most part, but you and I are not going to be able to get a NY Times reporter out of the federal pen.
Well, Dingo certainly draws one bright line - when the story itself is being used to commit a crime, it seems reasonable to demand disclosure. That's a very good post.
I can't say that some of Dan Rather's reporting hasn't irked me, but the memos in that last escapade were quickly exposed as forgeries. In general, more access to information is going to allow critical examination from a large number of sources, some of whom will have the motivation to offset misstatements. Certainly there are going to be some injustices and abuses by the press, but I believe the average individual in this country is capable of weighing what they read and assessing it critically.
For instance, the LA Times let loose the dogs of sexual harrassment right before the recall election in CA, but yet the voters ignored the story and elected Schwarzenegger. Our entire constitutional system is based on the idea that the average citizen has some brain power and some willingness to use it, and in my experience, they do.
My guess is that the most blatant abuses of the press occur in the field of psuedo-scientific reporting, or anything story with numbers, because a lot of people simply turn off their brains when they see numbers.
Senator Dodd is particularly directing our attention to the lack of federal protections for the press in contrast to explicit protection at the state level. This is particularly relevant because the President appoints US Prosecutors, and so it seems as if this part of the justice system has a relatively high potential for misuse.
I remember some squawking from the Republicans when Clinton came in and replaced a bunch of US Prosecutors, but I sure haven't seen any talk about this vulnerability lately from the Republicans. Maybe Bush didn't do the same thing, or maybe he did and they just think it's a great idea now - but given the trend towards an imperial presidency and a spineless Congress, I think we need a pretty powerful press to offset such potential abuses of power.
I guess I'm advocating the lesser of two offsetting evils here - and Dan Ratherism is definitely less intimidating than the power of the federal government. We the people can counter a Dan Rather's excesses for the most part, but you and I are not going to be able to get a NY Times reporter out of the federal pen.
To SC&A,
By all means, reporters DO have accountability for misreporting or lying about stories.
First, they have to answer to their bosses. Look at Jayson Blair for the NYT. He got canned. I don't think it was really Dan Rather's idea to retire. Just like any other job, you get caught lying, you get shown the door.
Second, not only because your boss is pissed off, but because the public will no longer trust you. It kind of defeats the purpose of being a reporter if they don't believe what you are reporting. And as MaxedOutMama pointed out, reporters are under scrutiny by the public now days as the the reporter is scrutinizing the politicians.
Third, there is the legal aspects of lying. Reporters are not immune from libel laws. If journalist's report on someone is a lie, that person can sue the reporter for libel. The thought of a lawsuit is quite a good deterrent.
By all means, reporters DO have accountability for misreporting or lying about stories.
First, they have to answer to their bosses. Look at Jayson Blair for the NYT. He got canned. I don't think it was really Dan Rather's idea to retire. Just like any other job, you get caught lying, you get shown the door.
Second, not only because your boss is pissed off, but because the public will no longer trust you. It kind of defeats the purpose of being a reporter if they don't believe what you are reporting. And as MaxedOutMama pointed out, reporters are under scrutiny by the public now days as the the reporter is scrutinizing the politicians.
Third, there is the legal aspects of lying. Reporters are not immune from libel laws. If journalist's report on someone is a lie, that person can sue the reporter for libel. The thought of a lawsuit is quite a good deterrent.
MOM, Dingo,
While your responses address the issue, they remain off point to a degree.
The matter in question remains- should there be a mechanism in place to hold a constitionally protected group accountable- and if not, why not?
That the marketplace may have an impact remains irrelevant to the question, as does the threat of lawsuits.
Professions that are afforded protections have the threat of lawsuits as well. They remain accountable, however.
SC&A
While your responses address the issue, they remain off point to a degree.
The matter in question remains- should there be a mechanism in place to hold a constitionally protected group accountable- and if not, why not?
That the marketplace may have an impact remains irrelevant to the question, as does the threat of lawsuits.
Professions that are afforded protections have the threat of lawsuits as well. They remain accountable, however.
SC&A
# posted by : 10:44 PM
: 10:44 PM
SC&A,
I am sorry, but I may be just missing your question. I will try again and if it doesn't hit on topic maybe you could try rephrasing the question.
When you say a mechanism to hold a reporter accountable, do you mean like when a lawyer or Dr. loose their license to practice their respective professions? If that is the case, than no, I don't think there should be any mechanism to hold them accountable. That mean that reporters would have to get a license in order to report on stories. First, this would be a severe curb on the first amendment. It would be way too easy for the government to censor people. Second, licensing would require a test of some sort. A lawyer must take the bar. Doctors take the boards. What kind of test do you administer to become a journalists? Grammar and spelling? God knows I would not pass. Which brings me to my third point. Licensing would shut down the entire blogoshpere. You, I, and MOM are by legal definition, journalists... yeah, maybe not the best ones in the world, but we fit the definition. If you were to get a source about corruption in the government and were to post it, you would enjoy the same legal protection as Dan Rather. When it comes to reporting, it is very very subjective to determine fact from opinion. There is a lot of crap published out there that I think is worthy of only deletion, but that is my opinion and I don't want the government poking around our blogs. I think there are definite circumstances (in my opinion) where journalists should be forced to divulge their sources, but otherwise, judges should quash the subpoenas.
And when it comes to federal legal protection, I am not really sure it is needed. 49 states already have it and since federal courts are SUPPOSED to follow state law (there is not federal common law).
By the way, I saw your review of my blog you wrote. Thank you very much. Since I became a lawyer, I don't even think my mother has said anything nice about me :)
I am sorry, but I may be just missing your question. I will try again and if it doesn't hit on topic maybe you could try rephrasing the question.
When you say a mechanism to hold a reporter accountable, do you mean like when a lawyer or Dr. loose their license to practice their respective professions? If that is the case, than no, I don't think there should be any mechanism to hold them accountable. That mean that reporters would have to get a license in order to report on stories. First, this would be a severe curb on the first amendment. It would be way too easy for the government to censor people. Second, licensing would require a test of some sort. A lawyer must take the bar. Doctors take the boards. What kind of test do you administer to become a journalists? Grammar and spelling? God knows I would not pass. Which brings me to my third point. Licensing would shut down the entire blogoshpere. You, I, and MOM are by legal definition, journalists... yeah, maybe not the best ones in the world, but we fit the definition. If you were to get a source about corruption in the government and were to post it, you would enjoy the same legal protection as Dan Rather. When it comes to reporting, it is very very subjective to determine fact from opinion. There is a lot of crap published out there that I think is worthy of only deletion, but that is my opinion and I don't want the government poking around our blogs. I think there are definite circumstances (in my opinion) where journalists should be forced to divulge their sources, but otherwise, judges should quash the subpoenas.
And when it comes to federal legal protection, I am not really sure it is needed. 49 states already have it and since federal courts are SUPPOSED to follow state law (there is not federal common law).
By the way, I saw your review of my blog you wrote. Thank you very much. Since I became a lawyer, I don't even think my mother has said anything nice about me :)
SC&A,
All rights have some limits, and usually those limits occur at active participation in criminal behavior. We have freedom of religion, and under that right you can say almost anything in church in the USA, whether ill-judged or not. But I couldn't establish a church that believed in racial purity and preach sermons expounding the duty to go out and kill all people of other racial backgrounds with impunity. If any one of my congregation took me up on it, wouldn't I be hauled into court for inciting a crime?
Likewise, I think a "journalist" writing an article that purported to explain scientifically that we could eliminate all disease by killing those redheaded disease carriers would have some liability if redheaded corpses suddenly started showing up on the streets. I also think what would happen first in our society would be that many other journalists would call him or her out on the falsity.
Maybe these seem like extreme examples, but in the 1920's and 30's an extreme but orginally underground press developed that did publish precisely this type of "news" in Austria and Germany. It was not discussed in the elite circles (which, I think, were largely imbued by a milder form of the same dysfunction). Eventually, many people believed those unexamined doctrines. Eventually that type of thinking became official government doctrine and was enshrined in law. The results were horrific, both for the Semites and the anti-Semites. Societies can succumb to waves of stupidity just as individuals can.
We can't make people wise or healthy or rational. We can't stop people from coming up with strange malign ideas. All we can probably do is construct a system in which such ideas are openly spoken about and debunked, even though such a process may be about as unpleasant to witness as an autopsy. Democracies in action are not necessarily an uplifting or admirable spectacle, but don't the results of the democratic disease process seem generally less lethal than the results of societies created to enforce some particular group's idea of "justice" or "health" or "morality"?
I think there can be no absolute answer to your question. Yes, there must be accountability - but how can we proactively establish any but the most basic standards for accountability without killing the patient? Instead, our approach has been historically to proscribe certain excesses of those freedoms in practice.
If you have something in mind that might work in practice, please share it. I'm not arguing that freedom of the press doesn't produce injustices and imbalances of its own - just that it is a more survivable dysfunction.
I am watching the development of the US legal doctrine of allowable torture and US desaparecidos, and I'm not hopeful about the future of this society if we don't have some means to penetrate and publicize official secrets.
Right now I'm brooding on Dingo's standard, and wondering how far that could be abused by a well-intentioned security agency and a few helpful US prosecutors. A congress that doesn't bother to read the laws it passes is a less-than-effective representative of the citizenry against the Executive.
Dingo, do you have any thoughts on that? I'm getting worried about all this secrecy and national security stuff.
Also, are you sure bloggers have the protections of journalists? Wasn't there a case in Texas in which a free-lance journalist had her working papers seized because the court ruled she wasn't working on the story in the paid service of a publisher and so didn't have the protected status of a journalist?
I suspect that bloggers really don't have much protection at all. Fortunately, I don't have anonymous sources to protect.
Post a Comment
All rights have some limits, and usually those limits occur at active participation in criminal behavior. We have freedom of religion, and under that right you can say almost anything in church in the USA, whether ill-judged or not. But I couldn't establish a church that believed in racial purity and preach sermons expounding the duty to go out and kill all people of other racial backgrounds with impunity. If any one of my congregation took me up on it, wouldn't I be hauled into court for inciting a crime?
Likewise, I think a "journalist" writing an article that purported to explain scientifically that we could eliminate all disease by killing those redheaded disease carriers would have some liability if redheaded corpses suddenly started showing up on the streets. I also think what would happen first in our society would be that many other journalists would call him or her out on the falsity.
Maybe these seem like extreme examples, but in the 1920's and 30's an extreme but orginally underground press developed that did publish precisely this type of "news" in Austria and Germany. It was not discussed in the elite circles (which, I think, were largely imbued by a milder form of the same dysfunction). Eventually, many people believed those unexamined doctrines. Eventually that type of thinking became official government doctrine and was enshrined in law. The results were horrific, both for the Semites and the anti-Semites. Societies can succumb to waves of stupidity just as individuals can.
We can't make people wise or healthy or rational. We can't stop people from coming up with strange malign ideas. All we can probably do is construct a system in which such ideas are openly spoken about and debunked, even though such a process may be about as unpleasant to witness as an autopsy. Democracies in action are not necessarily an uplifting or admirable spectacle, but don't the results of the democratic disease process seem generally less lethal than the results of societies created to enforce some particular group's idea of "justice" or "health" or "morality"?
I think there can be no absolute answer to your question. Yes, there must be accountability - but how can we proactively establish any but the most basic standards for accountability without killing the patient? Instead, our approach has been historically to proscribe certain excesses of those freedoms in practice.
If you have something in mind that might work in practice, please share it. I'm not arguing that freedom of the press doesn't produce injustices and imbalances of its own - just that it is a more survivable dysfunction.
I am watching the development of the US legal doctrine of allowable torture and US desaparecidos, and I'm not hopeful about the future of this society if we don't have some means to penetrate and publicize official secrets.
Right now I'm brooding on Dingo's standard, and wondering how far that could be abused by a well-intentioned security agency and a few helpful US prosecutors. A congress that doesn't bother to read the laws it passes is a less-than-effective representative of the citizenry against the Executive.
Dingo, do you have any thoughts on that? I'm getting worried about all this secrecy and national security stuff.
Also, are you sure bloggers have the protections of journalists? Wasn't there a case in Texas in which a free-lance journalist had her working papers seized because the court ruled she wasn't working on the story in the paid service of a publisher and so didn't have the protected status of a journalist?
I suspect that bloggers really don't have much protection at all. Fortunately, I don't have anonymous sources to protect.
# posted by : 8:56 AM
: 8:56 AM << Home
