Government meddling with press crosses the line

Sunday, November 4, 2007

A Utah state judge recently found a Salt Lake City television reporter in contempt of court for violating his order against news media interviews with potential jurors in a high-profile criminal case.

KUTV reporter Katie Baker said she was new to court reporting, and hadn’t fully read the court’s “decorum order” about cell phones, interviews and photography when she spoke Sept. 10 with a member of the potential juror pool in the trial of accused rapist and polygamist Warren Jeffs.

We’ve likely all heard the old saying that “ignorance of the law is no excuse.” And while Baker’s inadvertent error may not rise to what you and I would call “contempt” in the regular world, in a courtroom that’s a definition that rests largely in the eye of the bench holder.

In scolding Baker, 5th District Judge James Shumate noted that judges’ orders would lose their legal impact if the excuse “I forgot to read it all” were accepted. “It is not necessary for the Court to leap any conceptual abyss to conclude that Ms. Baker had the ability to comply with the Order,” he went on to say. “All she had to do was to leave the jurors alone.”

But then Shumate ordered Baker to produce a broadcast public-service report, and — even if it’s never broadcast — to deliver a copy of that report to the court within 90 days. If she met the deadline, Judge Shumate would remove the contempt finding. He said Baker’s work on the report alone would meet the court’s “educational objective.”

Ignorance of the law appears to be working both ways in this case. Nowhere in the First Amendment’s pretty straightforward language does it provide for judges or any other government official to order journalists to create any news reports.

“To require the production … goes squarely against the First Amendment freedom from compelled expression our nation’s jurisprudence has long supported,” Reporters Committee for Freedom of the Press Executive Director Lucy A. Dalglish wrote to the judge.

The law’s prohibition on compelled expression, as Dalglish reminded the judge, includes not forcing citizens to speak — or remain silent — in any particular manner; not making people express themselves in a way that might violate their religious beliefs; and not making newspapers publish specific kinds of accounts about politicians or political campaigns.

Yes, reporters and their editors ought to know about court orders when they cover trials and trial preparations. Like any citizen, they are obligated to obey those orders or to mount legal challenges to those they oppose.

But when government speaks, we ought to know it’s the government talking — not a press under duress, and certainly not the government pretending to be the press.

Which brings us to the phony news conference staged Oct. 23 by some Federal Emergency Management Agency employees, touting their good work in responding to the Southern California wildfires.

FEMA officials said reporters were given only 15 minutes’ notice of the scheduled press conference, and while a number of journalists had dialed into a toll-free line to listen to the briefing — and some networks went “live” to it — no actual news reporters were there. Agency employees asked questions off-camera and the playacting went on.

Though FEMA’s emergency response since Katrina may well prove to have improved in San Diego and other devastated areas, its credibility seems stuck in the same disaster zone.

A free press exists in large part to question, investigate and report, on behalf of us all, on what our government is or is not doing. We all benefit from the give-and-take, the robust tussle, between what bureaucrats say and do and what reporters can discover and report. Informed citizens need to know where information comes from so they can judge its credibility and completeness.

But when fake newspeople ask softball questions at a staged event, none of that happens. One example of the hardly robust exchange at FEMA’s “briefing:”

Q. Are you happy with FEMA’s response, so far?

A. I’m very happy with FEMA’s response so far.

No one, not even those involved, appears to have defended the fakery once it was exposed, though one reaction stands out above all: “I think it was one of the dumbest and most inappropriate things I’ve seen since I’ve been in government,” Homeland Security chief Michael Chertoff said.

Now that’s contempt.

Gene Policinski is vice president and executive director of the First Amendment Center, 1101 Wilson Blvd., Arlington, VA 22209. Web: E-mail:

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