First Amendment and open government news
Vol. 15, No. 15, July 13, 2005
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COMMENTARY
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Fickle media begins to criticize and question Judith Miller's choice
of jail over outing her source. Why Miller is right and her critics wrong.
By Peter Scheer
(CFAC, July 13) -- The New York Times' Judith Miller has been in federal jail for only seven days, and already the conventional wisdom has shifted, from unflinching support of her decision to refuse to testify about a confidential source, to skeptical questioning of her motives and the motives of her presumed source, White House political advisor Karl Rove.
In the vanguard of the revisionists are Michael Kinsley of the Los Angeles Times, David Ignatius of the Washington Post, and Jacob Weisberg of Slate.com, brilliant editors and pundits all, but handicapped on this subject by the fact that, as editors and pundits, they rarely, if ever, have a need to use confidential sources themselves.
That makes a difference, I submit, since the main argument for protecting confidential sources is fundamentally a practical one--that without the ability to promise a source confidentiality, and to have the source believe that promise, reporters could no longer produce news stories of the utmost public importance, including most reporting on corporate malfeasance, government corruption and national security.
If Kinsley, Ignatius or Weisberg ever negotiate for information from an anonymous source, their conversation would go something like this: "I will keep your identity secret unless and until I receive a subpoena and a federal judge orders me to divulge your identity, at which time I will weigh the public interest in maintaining confidentiality against the public interest in disclosing my source--also taking into account whether you have behaved well or badly in this matter--and then decide whether to betray your confidence."
Needless to say, sources might find this approach less than reassuring. (Disclosure: Kinsley is a friend and I have written for Weisberg's publication, Slate.)
The revisionist critique of Miller and the New York Times comes down to essentially three arguments. Here is a primer for defending Miller.
Argument 1: The protection of confidential sources is designed to protect well-intentioned and public-spirited sources who leak information that is in the public interest, not spiteful and manipulative politicians who leak for political advantage.
Answer: First Amendment rights aren't reserved for popular ideas advocated by savory speakers. Unpopular, even loathsome, speech (think Larry Flynt) is protected, not only because it may have value in its own right, but also to assure that society does not suppress valuable speech by mistake.
Confidential sources, moreover, do not provide information only, or even mostly, for altruistic reasons. They leak for political advantage, or to discredit a policy they disagree with, or to harm their enemies--and sometimes, yes, to promote the public interest as they see it. Given these mixed and conflicting interests, a rule that conditioned protection of confidential sources on a source's motives for leaking is a rule that would provide very little protection.
Argument 2: The right to protect a confidential source ends if the source, in leaking information to a reporter, violates the law. The appeal of this argument for Miller's liberal critics is that Karl Rove, her presumed source (and an acknowledged source for Time magazine's Matthew Cooper) may have violated a federal criminal statute--and/or may have perjured himself before the grand jury.
Answer: Reporters often don't know---and can't know for sure--that a given leak is illegal. Even judges would disagree on whether Rove acted illegally, so how can we expect reporters to determine, at the time they interview their source, the legal status of a leak.
Besides, any leak can be plausibly characterized as illegal. In the national security area, for example, virtually all information is classified, and leaks of classified information--think of Daniel Ellsberg's leak of the Pentagon Papers-- are arguably illegal. Leaks about government corruption usually involve information from secret grand jury proceedings or investigative files--also illegal.
Even investigative reporting about corporate malfeasance--think of stories on Big Tobacco-- often will involve leaks of records that are trade secrets, other proprietary information, or privileged. The illegality of the leak, without more, can't be enough to strip a confidential source of all protection.
Argument 3: By refusing to testify about her source, even after appealing all the way to the Supreme Court, Miller and the Times put themselves "above the law."
Answer: This is the critics' strongest argument. Miller has indeed put herself above--or at least outside of--the law by continuing to defy the court's order. The Times and others are being disingenuous when they say otherwise. To be sure, Miller hasn't tried to escape or hide from the federal marshals. But succumbing to the court's penalty, as she has, is not the same as abiding by the law. Testifying is abiding by the law.
Yes, Miller is defying the court's order, but that's not the end of the matter -- Miller's continued defiance is in the time-honored tradition of civil disobedience. The higher principle for which she is sitting in a federal jail cell today is the public interest in the continued flow of information, not just from her source (Rove or whoever), but from all confidential sources, now and in the future.
For if Miller had chosen to testify in so high profile and public a case, no reporter would ever again be able to persuade a source to risk career, or more, to disclose vital information. For this we should all be grateful to Miller. Be very grateful.
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Note: On July 6 CFAC issued a statement, endorsed by its board,
supporting reporter Judith Miller and calling on the California congressional
delegation to support a federal "Shield Law." That statement,
which was published and excerpted in many newspapers, is reprinted here
in full:
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Why reporters must be able to keep confidential sources confidential: The case for a Federal Shield law now.
(CFAC, July 6) - Across the land, freedom of the press-that is, the freedom of American citizens, through the press, to be kept informed about the affairs of government-is under assault. The threat comes not from the left or the right, from the Administration or Congress, but from federal judges, prosecutors and litigants who no longer feel constrained by law, ethics or policy from demanding that journalists disclose their confidential sources.
It is estimated that during the past year more than 70 journalists and news organizations have been involved in disputes with prosecutors and litigants in federal court over access to unpublished, confidential information. Dozens have received subpoenas demanding records or testimony; one journalist, Jim Taricani, a television reporter in Rhode Island, has already served a sentence for refusing to identify an anonymous source; and at least nine journalists have been held in contempt and currently face the threat of imminent incarceration or heavy fines (or both), including New York Times reporter Judith Miller, who was ordered jailed today. (Time magazine reporter Matthew Cooper, explaining that his source had expressly relieved him of his secrecy obligation, announced today that he would cooperate with the Special Counsel.)
The threat against the press is not new in American history. During British colonial rule, writer John Peter Zenger refused to reveal his sources while serving a sentence for "libeling" the governor of New York, and Benjamin Franklin declined to name the confidential sources for stories appearing in his brother's newspaper in Boston. What is new is the pervasiveness and intensity of the threat. We have moved from a climate in which federal courts were, under a variety of legal theories, protective of reporters' confidential sources, to a climate in which a wave of federal court subpoenas now places the independence of the press in jeopardy.
At stake is the American people's right to know about the uses and misuses of power in high places. If journalists cannot promise confidentiality to a source-and have that source believe that his/ her identity will never be revealed-the public will lose news reports of the greatest importance and consequence for public policy.
These include reporting on corporate malfeasance, national security, and government corruption-all subjects for which confidential sources are not merely desirable, but indispensable. The best example in contemporary history is the reporting by Washington Post reporters Bob Woodward and Carl Bernstein that uncovered the Watergate scandals. The secrecy surrounding their most valuable confidential source, FBI official Mark Felt (aka "Deep Throat"), lasted more than 30 years and was lifted only recently by Felt himself.
The judicial threat is almost uniquely federal. Forty-nine states and the District of Columbia, through legislation or court decision, have adopted "shield laws" providing an evidentiary privilege for reporters-much like the privileges enjoyed by clergy, lawyers and psychotherapists- to keep secret information given them in confidence. Although some federal judicial circuits also recognize such a privilege, most do not, and the Supreme Court's recent decision not to review a crucial contempt ruling against reporters Miller and Cooper leaves no room for hope that the federal courts will, on their own, end the assault on press freedom.
Accordingly, we look to Congress for action on this urgent matter. Congress now has before it several bills to establish a reporter's evidentiary privilege in federal proceedings. We urge members of California's Congressional delegation, Democrats and Republicans alike, to come together and support the most promising of these bills. The issue is no longer whether a federal "shield law" is needed; the issue, rather, is how soon it can be enacted. Freedom of speech, upon which all our freedoms depend, hangs in the balance. --CFAC
Among the newspapers that ran the CFAC statement are the following:
San
Jose Mercury News
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FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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New
York Times:
Cleveland paper kills confidential source-based article for fear reporters
could face contempt charge and jail
SCOTUSBlog:
Why the Supreme Court declined to review Miller case:
Justice Breyer's recusal creates risk of 4-4 split. Court runs out of
time due to lawyers' delay.
Tracy
Press:
School district finance director's demotion hearing postponed
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POWER TO THE PEOPLE: UNLOCKING GOVERNMENT FOR THE PUBLIC, PRESS, AND THE
BLOGS
featuring
* FLOYD ABRAMS as keynote
* a special honor to MARK FELT (aka "Deep Throat")
* panel discussions on blogging, Prop 59 and everything in between
CFAC's annual free speech assembly
October 14 and 15
Cal State Fullerton
Click here for more
information
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CFAC HOTLINE Q & A
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The Hotline is CFAC's online legal information service. Questions from reporters, government officials, civic activists and the occasional crackpot are answered by media law specialists Roger Myers, Brooke Beros, Isela Castaneda, James Chadwick, Katherine Keating, Joshua Koltun, Rachel Matteo-Boehm, Diana Ng Fung, and Danielle Van Wert at the national law firm of DLA Piper Rudnick Gray Cary, CFAC's general counsel.
Have a legal issue? Submit your question here.
Employment applications of employees working for government entities
Q: Are employment applications of current or past employees of government bodies that are subject to the Brown Act open to public disclosure? I assume that some information falls under the personnel privacy exemption (e.g. SSN) but would the government body be required by the Brown Act to provide a redacted employee application if so requested?
A: Your analysis is correct. The records should generally be public except to the extent that the disclosure "would constitute an unwarranted invasion of personal privacy." Gov. Code section 6254 (c). Generally speaking, the sort of information disclosed in a job application should be public, with the exception of personal identifiers such as social security information or perhaps health or insurance information. "[I]nformation as to the education, training, experience, awards, previous positions and publications of the [employee] is routinely presented in both professional and social settings, ... and implicates no applicable privacy or public policy exemption." Eskaton Monterey Hospital v. Myers, 134 Cal. App.3d 788 (3d Dist. 1982).
Electronic messages sent by council members during meetings
Q: Are communications received, read, or sent silently by council members on Blackberry or other devices during meetings (whether from other councilmembers or from members of the audience or the television) audience required to be made public?
A: You ask an excellent question. I would certainly argue that any such messages are public documents under the definition of a "writing" under Government Code section 6252 (f), which includes "any form of communication or representation." Unless the content of the communication falls within one of the exceptions to the Public Records Act, the communication should be disclosed. Certainly a Public Record Act request for the documents would be in order.
It is also possible that the communications constitute a violation of the Brown Act, if they are an effort to assemble a consensus among a majority of the members "in private." One would have to examine the communications to determine whether this were the case.
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ASKED AND ANSWERED
Do you find these questions and answers helpful? If so, you should also
consult "Asked and
Answered" on CFAC's Web site, a compilation of past Hotline questions
and answers.
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MORE FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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San
Diego Union Tribune:
Retirement board rebuffs City Attorney request to create transcript of
commission's closed sessions
The
Argus:
After violating Brown Act, port officials must go to open meeting school
Thousand
Oaks Acorn:
D.A. finds no evidence of Brown Act violations regarding Gatch resignation
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CFAC IN THE NEWS
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Vacaville Reporter:
Protecting sources
Latest case raises more questions than answers
Tracy
Press:
School district finance director's demotion hearing postponed
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EDITORIALS
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Vacaville
Reporter:
Protecting sources
Latest case raises more questions than answers
Contra
Costa Times:
Commitment to public access guides our best efforts
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The California First Amendment Coalition is a non-profit public interest
organization dedicated to enhancing rights to freedom of speech and open
government through information and educational services, strategic litigation,
and lobbying.
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here to join CFAC.
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