Why the rash of restraints against the news?
Those who defend both the concept and the day-to-day work of a free press rightly are sounding the alarm about a flurry of judicial moves against reporters and news operations.
This sudden rush of First Amendment challenges has ranged from attempts to keep newspapers and other media from publishing what they know, to contempt citations and threats of jail time leveled at a half-dozen reporters for not revealing confidential sources.
Carefully crafted legal compromises between conflicting parts of the Bill of Rights — the public’s right to know and a defendant’s right to a fair trial — seemingly are back up for grabs. The post-9/11 atmospherics and emphasis on national security are closing off many of the public’s open sources of information about what its government is doing.
And then there is perhaps the most threatening situation of all: Among the three branches of government, the judiciary has been the historical defender — as well as definer — of free-press rights. In recent weeks, though, the most-significant series of challenges to reporters and editors have been in and by the courts.
Why are we at this moment, when basic American freedoms and rights are both in conflict and at risk? The answer is as complex as some of the issues:
- The public’s confidence in the news media has been declining because of a combination of self-inflicted wounds and the effect of a long-term assault by conservatives on what they see as a news media tilted far to the left. In State of the First Amendment surveys conducted since 1997 by the First Amendment Center, about 40% of Americans consistently have said “the press has too much freedom.” Media fabrication and plagiarism scandals give credence to critics’ views that journalists lie or make up facts, invent so-called “confidential sources” and have abandoned objectivity and public service for bias and self-interest. More than 60% believe making up stories is a widespread problem. Just 39% think news organizations try to report without bias.
- In high-profile trials involving celebrities like Michael Jackson, Martha Stewart and the NBA’s Kobe Bryant, the media’s pursuit of sometimes tawdry or scandalous information has been pitted against the defendant’s right to a fair trial, an impartial jury and, in some of those cases, well-intentioned laws designed to protect the privacy of victims of sexual assault. Lost in those debates is a basic principal established by the nation’s founders: That a free press would protect citizens against abuse of the courts by the government — by insuring that civil and criminal trials are conducted in the open, not behind closed doors or by secret quasi-judicial tribunals.
- In the post-9/11 United States, a combination of fear and a longstanding government tendency toward secrecy, particularly on national-security matters, has closed off many traditional and open sources of information at the very time the American public, via the press, wants to know more — more about the war in Iraq and how we came to be in that conflict, more about those being detained without trial as possible terrorists, more about the overall system of combating terrorism and more about specific warnings such as the recent elevated security on Wall Street and elsewhere.
Reporters pursuing those stories and more have had to increase their reliance on officials who speak off the record or who leak information. Complicating the matter is what even press supporters often concede is an overuse of unnamed sources, particularly on stories involving Washington, D.C., matters and high finance.
While support for journalists' keeping such sources confidential still has majority support — 70% in the 2004 State of the First Amendment survey, that’s down from 85% in 1997. The Supreme Court ruled in 1972, in Branzburg v. Hayes, that no such absolute right exists for journalists in the federal purview, and a hodge-podge of state “shield laws” have failed to provide universal protection, particularly from grand jury investigations.
Add to this mix the rise over the last 20 years of a “24/7” media presence, a sea of news on cable TV and the Internet, talk and analysis on which sail whole new fleets of networks, bloggers, experts and pundits, all trying to attract a slice of a larger-but-ever-more-distracted audience. As citizens we may be more informed than earlier generations, but it certainly is true that we simply are more inundated. And, and as in a lecture hall where everyone is shouting, some of us are less able to hear the speaker.
Judges in a variety of ongoing cases have decided they know how to cut through the clamor or shut down at least some of the voices — “gag” orders, closed jury selection or hearings, and even the granddaddy of tactics, a judicial order to journalists not to print what they know.
Also in vogue are prosecutors and defense attorneys who persuade judges to press the issue of whether or not journalists can be dragooned into being witnesses for one side or the other by court orders that would force them to disclose sources of information.
For nearly more than a quarter-century, an uneasy and somewhat undefined truce has existed in those areas of newsgathering. Though there was no formal protection in federal courts for reporter confidentiality, there also was recognition — voiced in that 1972 Branzburg case by Justice Lewis Powell in his concurring opinion — that the government ought not to “chill” the newsgathering effort by, in effect, using its authority to turn reporters in de facto investigators.
Through the years, the Court has let that view stand, and allowed lower courts and states to create laws providing some measure of protection under some circumstances for reporters and their sources.
The Pentagon Papers decision by the Supreme Court in 1971 seemed to say that, without some supremely dangerous threat to national security, no government department or official, including the White House, could stop a newspaper from publishing material it had obtained legally.
In return, the news media quietly accepted the notion voiced in Branzburg that journalists had no more — or less — protection or privilege than other citizens when it came to providing information through the courts that was sought by prosecutors, grand juries or others.
The compromise generally worked. Prosecutors were to exhaust any other means of getting needed information, and had to demonstrate convincingly that the information was vital to their case. Selection of jurors took place in open court, even in high-profile cases.
Judges used the significant, traditional powers of the bench to ensure fair trials in even the most-publicized instances, from moving cases out of the area of intense local coverage, to asking jurors to refrain from exposure to news media accounts of the case, to sequestering jurors during the trial. In some cases, lawyers were advised not to “try the case in the newspapers.” Records were sometimes — and in the case of juveniles, virtually always — sealed, but by and large motions, evidence and such were open for journalists and others to examine.
In return, most news organizations decided on their own to avoid some of the most potentially contentious areas. Most newspapers did not print jurors’ names, even in celebrity trials — waiting until the verdict was reached, generally, before getting some members of the jury to agree to interviews about the case or appear on camera. Most newspapers and television newscasts did not use the names of juveniles, even when the youths were charged with serious crime or the identity was well-known in the community.
A whole generation of journalists has grown up believing — perhaps naively — that only in the most extreme cases would judges or other public officials break those ground rules. For example, the Reporters Committee for Freedom of the Press reports that just 14 journalists have been jailed in the past 20 years — many of them only briefly — for refusing to name sources. “Prior restraint” seemed a doctrine restricted to a passing reference in press law textbooks.
The first signs of change may have come when journalists took note of an increasing tendency of courts to agree to seal documents, first in cases involving businesses settling damage claims and then in cases where information was damaging or simply embarrassing.
As the news coverage, and the nation, experienced a mega-increase in the amount and time and variety of news coverage possible in a wired-world of cable TV news and Internet reports on top of newspapers, television and all-news radio, judges saw or experienced the effects first-hand: from O.J. to the Oklahoma City bombing trials to civil trials involving Microsoft to criminal charges against actor Robert Blake and then Stewart, Jackson and Bryant — all news and, as the saying goes all the time.
Even as the reporting (critics would say “chatter”) increased in the media, some judges countered with orders gagging lawyers and witnesses. A judge barred reporters from watching the questioning of potential jurors in the Martha Stewart trial, a decision ultimately reversed by a higher court.
After several news organizations revealed the name of a juror in the very visible Tyco International trial — including The New York Post, which identified a female juror, called her “Ms. Trial” and published an artist’s rendition of her appearance — the judge declared a mistrial. Not long after, in the retrial of Silicon Valley investment banker Frank Quattrone, the judge cited the Tyco experience and ordered news reporters not to publish any juror's name.
In Jackson’s child-molestation case, virtually all documents have been sealed and a sweeping order prevents most involved parties from talking about the case.
In the Bryant case, a series of court missteps and clerical errors have given the news media not only the name of the woman who claims she was raped by the NBA star, but also information about her sexual history and other information that Terry Ruckriegle, the Colorado judge presiding over preliminary hearings, did not want disclosed. His attempt to block publication of that information was upheld by the Colorado Supreme Court, but ran into trouble — in a clear sign from the Supreme Court — that his attempt at “prior restraint” might not stand if the issue were pressed at that level.
Ruckriegle reconsidered and the news operations duly reported the information — with resulting speculation that the criminal charge could not be pressed successfully. He also issued, and then lessened the scope of, an order precluding lawyers and others from speaking to the press.
Still, within days, a Florida judge issued a similar order to a Jacksonville, Fla., television station, telling it not to report further on a grand jury transcript obtained from an assistant state attorney.
The pace and number of reporters threatened over refusing to reveal sources has surged just within a few days, from a dramatic case involving Time magazine and NBC News and the disclosure of the identify of a CIA operative, to disclosure today that three reporters from the San Francisco Chronicle, who have written about an ongoing investigation into illegal steroids supplied to athletes, have received letters in late July from the local U.S. Attorney's office, asking for documents given to them by confidential sources. One, two, six then nearly a dozen reporters suddenly facing judges, fines and jail time.
The great danger here is not just that some newspapers or media corporations risk heavy fines, or even that some journalists — however willing to stand on principal if not law — are willing to go to jail. It’s not even that some prosecutions will end in mistrial, as serious an occurrence as such would be.
Rather, it is that the American public may see court rulings and legislation enacted in a rush that significantly handicaps the ability of journalists — and therefore the public — to peel back new layers of official secrecy on important issues, and ultimately on the ability of citizens to evaluate the job being done by our leaders and our courts.
Judges properly see as part of their role the protection of the rights of the defendant or parties in a lawsuit who are standing before their bench.
But historically, they also have seen a need to protect the public’s right to be informed about what goes on in their courtrooms and in government, and to restrain prosecutors and others who want the short-term gain of obtaining information from journalists’ notepads or video at the long-term expense of shutting down vital information that sometimes is available only from a confidential source.