Balco leak uncovered

Let's hear from someone who hasn't been drinking the Kool-Aid:

"I've always been an absolute supporter of the duty -- not the right, but the duty -- of reporters to protect their sources. There was a time when I would have been an equally unthinking, knee-jerk supporter of a federal shield law. But, after what's come to light about the Rovians and their cozy little circle of journalistic collaborators, I have to think about it.

Left to their own devices, corporate journalists seem increasingly inclined to act as an arm of the government, not a watchdog of it. Which means the license granted by the traditions of the profession -- which in some ways extends even further than the legal rights guaranteed by the First Amendment -- can and is being used against the public interest, not to protect it. We seem to have run into yet another variation on the old Roman question: Quid custodiet ipsos custodes? Who shall watch the watchers?"

 

From Rosa Brooks at latimes.com:

"But Judith Miller has quite a few allies left when it comes to the question of whether Congress should enact legislation to prevent courts from forcing journalists to disclose their sources. Though the "circumstances" surrounding Miller's jail time "lack the comfort of moral clarity," as Executive Editor Bill Keller so delicately put it in a memo to his demoralized New York Times staffers, media outlets across the country have rallied around Miller's call for a federal shield law.

This is a mistake.

The bill Congress is considering -- the ludicrously titled "Free Flow of Information Act" -- is a spectacularly foolish piece of legislation. It will shield criminals as often as journalists and prevent the public from getting the information necessary to prosecute crimes."

 

What the hell's going on?

 

Another attack on Dye'p and another Dye'p against-the-ropes defense. Quite stimulating to read.

 

Also, whatever happened to that quickly discredited report about those other athletes who were using steroids? Funny how we didn't hear much more about that until the latest development.

 

Rosa Brooks is as vapid as you are.
Consider -- well, that may be asking too much, but we continue -- if a federal shield law passes, and judges are prevented from jailing reporters on criminal contempt charges as a lever to force out information, then the shield law will shield no criminals at all, because the act of receiving the information, already not a crime, will not be subject to contempt penalties, either. And judges looking for leakers will have to work a little harder.

 

I don't think anyone ever said receiving the information is against the law.

Disclosing it, however, then failing to disclose the source when asked to do so is another matter.

Except, of course, in the Kool-Aid drinkers' world.

 

We need shield laws precisely because the press is unregulated. If the press were regulated, then regulations (including shield protections) could be written that govern the circumstances under which journalists could (not) be required to reveal sources or other information the government deems important.

The First Amendment, we all know, forbids any laws "abridging" the freedom of the press. Thus, no regulations. Into that regulatory vacuum have stepped the courts, some of which have begun to issue orders to the press at the urging of the executive branch, usually law enforcement: reveal your source. Turn over your notes. Tell the prosecutor what the prosecutor has been unable to find out for himself.

Well, the press, and only the press, is granted freedom from governmental intrusion for a reason: it's democracy's lifeblood. Yes, it is that corny and that true. And it's why most states already have shield laws. Those laws force prosecutors to overcome steep barriers and prove why a journalist, and only a journalist, can provide information crucial to a criminal case, before a judge may approve a subpoena of a journalist. The barriers to plaintiffs in civil cases typically are even higher. Contrary to DyePack's assertions, those laws were passed without any connection to press "standards" or any debate about "who's being protected and why." Such a debate is none of government's business. By rule of the First Amendment, neither shield laws nor any other may concern themselves with the idea of what kind of press behavior is (in)appropriate. Shield laws govern the behavior of prosecutors, not the press. As an editor, I spend thousands of dollars a year, money I'd rather spend on reporters, on motions that invoke our state's shield law to quash subpoenas that prosecutors have no business issuing -- and would not need to issue if they did their jobs.

The Chron reporters are no more complicit in the crime of leaking grand jury testimony than is a reporter who publishes the contents of officially secret documents that are leaked. Any newspaper you can shake a stick at has, at one time or another, been provided with documents that the source was not lawfully permitted to release. Publication of stories based on those documents is no crime; the question of it even potentially being a crime has long been a settled matter of law.

Someone said we don't "need" shield laws. Perhaps this will help clarify: We WOULDN'T need them if prosecutors, with the assistance of judges, understood, as the founders did, that it undermines democracy to employ the press as a tool of law enforcement. But because prosecutors and judges have not restrained themselves, we do need shield laws if we are to help preserve press independence of government.

The suggestion that the industry must "regulate" itself before it has grounds to insist upon shield laws entertained is mystifying. There is no self-imposed regulation (a meaningless term anyway because "regulation" is something that only the state can impose; all other rules are, in the end, voluntary), that would be controlling of any public official. No prosecutor is bound by any rule agreed upon by the members of some press organization.

DyePack's suggestion that "Kool-Aid" drinkers will support any lawless behavior by the press is ludicrous. Eating the judge's kidney with a fork? That's murder, against the law, and has nothing to do with press freedom. Steal a document to get a story? That's theft, against the law, and has nothing to do with press freedom. Coach a whistleblower where to find a classified document? That's conspiracy, agaisnt the law, and has nothing to do with press freedom. No reasonable journalist would defend such actions.

Publishing information provided by a source has everything to do with press freedom, which may not be abridged. The Balco testimony was leaked, not extracted, a crucial difference. The receiving, and publishing, of information from a source who has himself used illegal means to obtain it is not in itself a crime. First Amendment says so, and even the Balco judge acknowledges this: the reporters have been charged with no crime. You can hate that pesky First Amendment if you must. Good luck getting three-fourths of the state legislatures to agree with you.
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(cont.)
The assertion that some states don't offer legal protection to reporters who refuse to obey a judge's order to reveal information is (lamentably) true, but is not relevant to the question of whether the reporters broke any law, and it is academic in the Balco case, where California's shield law governs. Refusing a judge's order is against the law, but is a violation separate from anything to do with the act of publishing leaked information, and in any case is not relevant to the debate about whether shield laws are a good idea.

Also irrelevant to the legal issues at hand is whether journalists ought to withhold publication of secret information until official proceedings are concluded. That is a question of ethics, not law, to be settled between the press and citizens who decide what they want to read & trust, not between the government and the press. Why DyePack even brought this up only he/she can explain.

To say "It's contempt of court when someone unseals the record" is factually incorrect. It might be against a statute, but it is not an act of contempt of the court.

Another invalid argument: "If it's not a violation of the law, why do we need shield laws?" The first proposition has nothing to do with the second. Shield laws protect journalists against having to comply with subpoenas and, by extension, from contempt charges (which arise because a judge agrees with a prosecutor's attempt to force a journalist to reveal information). They do not protect journalists from criminal charges.

 

DyePack made eight posts in a row on this page? Wow. That probably breaks Columbo's mark.

 

With a shield law, though, you could not be asked for the source's name, therefore refusing to provide it would not be a crime, either.

 

I think you need to go back and read the statutes that were posted here.

Also, we're starting to get back into the circular logic of "We don't need shield laws because most states already have them, but we need them." It's starting to become simply bleating to obscure some of the other details. The articles I've seen say 31 states and D.C. have a shield law. I wouldn't say that's most.

The kidney example was simply alluding to the fact there will always be people who will just start shouting "shield law" without knowing any of the facts. Hence, the posting of the Judy Miller info, which many have conviently forgotten. (Although I was surprised at the number of sane people who knew the wrong horse was being backed in that situation.)

Anyway, back to bleating. I'm sure we need shield laws, except when we don't, and then we do. After all, the government isn't investigating Balco, except that it is.