Chronicle Writers Get 18 Months for Contempt
Journalism Degree Provides no Constitutional Privilege to Obstruct Justice
By Leon H Wolf Posted in Miscellanea — Comments (1) / Email this page » / Leave a comment »
In light of the recent decision in United States v. Rosen, which held that private third parties (potentially including members of the press) may potentially be prosecuted under the Espionage Act, reporters have been understandably skittish and uptight about their supposed privilege to protect constitutional sources, an issue that has been on the front burner for many of these members of the press since Judith Miller was jailed for contempt for refusing to reveal her source. The common thread in all these cases is that the "source" for the reporter in question unquestionably broke the law in order to provide the media with information that they did not previously have. When an investigation was launched into the circumstances surrounding the illegal disclosure of that information, reporters refused to testify about where they got their information, claiming some sort of unclear privilege supposedly based in the First Amendment to not disclose sources. Of course, the First Amendment contains no guarantee that the press shall be allowed to obstruct justice, and these claims have been smacked down left and right.
Prior to this point, left-leaning pundits have been broadly sympathetic to the spurious constitutional claims of the press people in question, because the reporter in question reported information that was at least potentially politically damaging to the Bush administration - and all things done to damage Bush are ipso facto good and legal. Today, however, a case has arisen which even the most afflicted sufferers of BDS will be unable to tie to Bush, which will hopefully allow us to have a reasoned discussion about how ridiculous the media's claims in this regard are. Today, two reporters from the San Francisco Chronicle have been given 18 months in jail for contempt, for failing to disclose who illegally leaked grand jury testimony to them in the BALCO case. I should hope that it would be obvious, even to Barry-haters like myself, that the First Amendment should not be stretched to cover what these reporters did, and that they have earned themselves every day of these 18 months in jail.
There are, of course, many reasons why a source might wish to remain anonymous in the press. The information might cast them in an unfavorable light, might place their job in jeopardy, or might implicate them of an improper motive. Reporters, of course, have an interest in protecting the identity of these individuals, because if they start blowing the whistle on people, they get no more anonymous tips. Under these sorts of circumstances, I have no problem with reporters wanting to conceal their sources, so long as they are willing to accept that their information will be less credible when it comes from someone too craven to stand behind their information (or perhaps, made up by the reporter out of whole cloth - a circumstance which is entirely plausible in light of Jayson Blair and others).
However, in other circumstances, the source for a reporter breaks the law in order to pass information to that reporter. It may be that the Espionage Act has been violated - or, as in this case, sealed Grand Jury testimony has been illegally leaked to reporters. In such a case, the disclosure of this information becomes the operative fact in a lawful criminal prosecution. Whether or not the reporter in question can be lawfully prosecuted under the Espionage Act or some other act, it is clear that the government has a compelling interest in prosecuting someone for violating the law, and if the reporters in question refuse to disclose materially relevant facts, then a contempt charge is highly appropriate. This is especially true if the reporters themselves are not implicated in a potential Espionage Act violation, and thus have no protection against self-incrimination.
The First Amendment, of course, allows the press to print pretty much whatever they want, at least without prior restraint on the part of the government. However, nothing in the text of the First Amendment indicates that the press is thereafter immunized from answering questions about the content of their reporting, especially when it implicates criminal activity, and most especially when it obstructs the legal process of justice. There might be good public policy reasons to allow the press to hide their sources who provide them with explosive and potentially sensitive stories; there is no corresponding public policy interest in allowing members of the press to publish information illegally obtained, and then refuse to answer questions about the circumstances leading to the illegal leak of the information.
ESPN has drummed up someone to write a ridiculous defense of these two writers, which includes numerous red herrings like this:
The government wants to know who leaked secret grand jury testimony to the reporters, and they're going to the mattresses to find out. That's their right. The law says they can do that, though I believe the law is wrong. Right now, Congress is debating a federal shield bill that would protect journalists working on important stories. Write your congressman or congresswoman and let them know that you support it. One of those stories might be about a plant polluting your neighborhood or a corrupt school district that is supposed to be educating your children.
No one is interested in jailing reporters who write stories about a plant polluting a neighborhood - the sole issue here is whether journalists should have to answer questions about where they got information when that information was obtained through an illegal process. If the reason for disclosing this information was so compelling as to override the legal mechanism which made its disclosure illegal, that is something that should be hashed out during the course of investigating the leaker, and a per se exemption of the reporter who is hiding them (and by extension the full details of the story) serves no one except for reporters interested in making a name for themselves or making a quick buck off a book. The freedom of the press, and the good of the country, on the other hand, is better served by a full examination of the circumstnaces of disclosure, including who had the information, why they felt compelled to disclose it, and whether they might be covered by the Whistleblower protection act. The willingness of Farainu-Wada, Williams, Judith Miller and others to hide individuals who apparently lack the strength of their convictions so that we never know the real truth of the story in truth serves no one.
If you wish to remain secret because of fear of losing your job; that is perhaps understandable. However, if a person feels strongly enough about the needed publicity of a particular piece of information that they are willing to break the law in order to give it to the press, they ought to then be willing to make their case before a jury and the public about the necessity of that lawbreaking, not hide behind reporters using spurious First Amendment arguments.
Being a reporter doesn't get you a get-out-of-jail free card for obstructing justice; nor should it. And if it's true for those who reported illegally leaked information about Barry Bonds, it's true for those who reported illegally leaked information about our national security as well.