Tough choice: journalist or jailbird

Monday, May 3, 1999

Peter Sussman...
Peter Sussman

Nothing focuses a journalist’s mind like the threat of a prison sentence.

It’s one thing to defend journalistic freedom and independence with bombast and rhetoric; quite another to surrender personal freedom and independence in a jail cell.

Peter Sussman, a free-lance journalist in California, and Steve Crosby, a newspaper editor in Michigan, are just the latest in a steady stream of journalists who have had to confront that painful dilemma. Both have been targeted by public officials wanting to make law-enforcement work easier by hijacking the work of the journalists.

Crosby, as executive editor of the Lansing State Journal, has been a leader in press resistance to subpoenas fired off by the Ingham County, Mich., district attorney’s office. The DA wants newspapers and radio and television stations to turn over material collected during a riot after Michigan State University lost in the finals of the NCAA basketball tournament.

Sussman was a peripheral figure who became a central figure in a lawsuit filed against the California Department of Corrections by a prisoner who says his civil rights were violated when he was fired as editor of a prison newspaper. The prisoner apparently was disciplined for writing a letter to a
journalist that the corrections department charged “circumvented policies”
on media interviews.

Taking the First Amendment high road would be easier for journalists in such situations, of course, if the public and elected officials, not to mention judges, showed some understanding of the critical need for journalists to be able to gather and report the news without becoming an arm of government.

Further complicating the dilemma is the fact that many journalists and their bosses today desperately want to be viewed as good citizens. So they put pressure on their colleagues in such situations to do their “civic duty”; indeed, many news organizations voluntarily give up material without a fight or even offer it without being asked.

In fact, many journalists regard going to jail for free-press principles as the act of a chump rather than a champion of the public’s First Amendment freedoms.

All that makes deciding whether to give prosecutors and attorneys general what they demand a tough choice without the threat of jail. But given recent trends in court decisions, jail is an all-too-real possibility for the journalist who stands up for First Amendment principles.

Crosby and Sussman are breathing a bit easier for the moment after receiving welcome news late last week.

After three court decisions by two different judges upholding the subpoenas against the Michigan media, the Michigan Supreme Court on April 30 sent the case back to district court, ruling that the prosecutor had issued the wrong kind of subpoena. The news organizations face further legal action if the prosecutor decides to reissue subpoenas.

Also at the end of the week, California Attorney General Bill Lockyer and Sussman’s attorneys reached a last-minute deal before Sussman would have had to either give up subpoenaed material or refuse and risk going to jail. Lockyer, who had inherited the situation from the previous attorney general, agreed to withdraw the subpoena. If that settlement falls through, however, Sussman will be back in court facing the same dilemma on May 5.

At least Steve Crosby has the weight of his newspaper and the Gannett Company behind him and the comfort of knowing that other news organizations are in the same boat. Even so, if the courts eventually rule he has to turn over unpublished material and he refuses, he faces a tough decision.

Peter Sussman’s situation is particularly poignant. He has no employer to back his legal fight. He is an outspoken advocate for more access by the press to prisoners in the
California system. He is a First Amendment champion and a press ethicist, with no choice but to do the right thing.

And since the mid-’80s, Sussman has been a real irritant to a secretive and scandal-ridden prison system.

As editor of the Sunday Punch section of the San Francisco Chronicle, Sussman published articles about the federal prison system by an inmate named Dannie Martin. Because Martin’s articles hit too close to home, prison authorities tried to restrict his writing and put him in isolation. Martin and Sussman then co-authored a book, Committing Journalism: The Prison Writings of Red Hog, published in 1993. The book contained Martin’s articles about civil rights violations in the prisons and other abuses and problems as well as Sussman’s accounting of the struggle for Martin’s First Amendment rights.

But the book wasn’t the end of it. As a journalist, Sussman continued to write about access to the press by prisoners and, as president of the Northern California chapter of the Society of Professional Journalists, to advocate a law that would loosen Department of Corrections restrictions on access.

It is no surprise, then, that powerful people in California wanted Peter Sussman to just shut the hell up.

To get that to happen, they have brought to bear the full force of government institutions and taxpayer funds. It is the job of the California attorney general’s office to defend the Department of Corrections from the prisoner’s civil rights suit. So the office went after Peter Sussman tooth and nail, grilling him in more than 14 hours of depositions and telling him to surrender his diaries, notes, correspondence, research, computer records, financial records, contracts, press releases, testimony to the state Legislature, even his e-mail messages and postings he read on an Internet message board.

It’s clear from this laundry list that these actions had more to do with Sussman’s views about access to the prison system than anything of relevance he might provide in defending against the lawsuit. As the Sacramento Bee put it in an editorial last week: “Is this extraordinary subpoena really meant to fight a lawsuit — or is the state seeking to punish and silence a reporter who has criticized them?”

They may not have shut Sussman up, but they have effectively shut him down as a journalist since early January. In the name of California’s citizens and taxpayers, state officials have:

  • Punished Sussman for critical reporting on the prison system.
  • Curtailed his ability to work as a journalist.
  • Challenged his First Amendment right of advocating legislation before the Legislature.
  • Sent a message of intimidation to all journalists investigating corruption and brutality in the California prison system.
  • And most importantly, protected regulations that prevent prisoners from talking about abuses of power.

Even if these actions had little to do with defending a lawsuit against the Department of Corrections, this fishing expedition and harassment was a win-win situation for the state officials. They could at least temporarily silence an effective advocate for prison access, and, if they got real lucky and he refused to turn over all the material they requested, they could send him to jail.

And as Peter Sussman and other journalists have been telling anyone who will listen, a jail sentence in California is a sentence of silence.

That is just one of the dangers to democracy of public officials who try to commandeer and compromise the journalist rather than recognize and respect the public’s right to a free and independent press.

Paul McMasters may be contacted at