Posted on 03/12/2006 1:43:11 PM PST by weegee
The Bush administration has displayed a remarkable mastery at directing attention on issues through its own lens. Recently, for example, the White House tried to shift the national focus from the subject of alleged illegal wiretapping to a criminal investigation into who leaked the president's secret.
Which raises the question: Should constitutionally protected news gathering be given a renewed boost through shield laws?
The answer is — emphatically — yes.
Reporter shield laws, designed to protect the confidentiality of press sources, are necessary not only to protect individual reporters, but more importantly, to protect the news gathering process and to ensure a check on governmental power.
Texas legislators recently attempted to revive the journalistic protections embodied in the First Amendment. State Sen. Rodney Ellis, D-Houston, and state Rep. Aaron Pena, D-Edinburg, proposed bills within the last year to "ensure journalists and their sources are protected in their job of keeping the public informed." Unfortunately, the bills died as a result of legislators' unwillingness to cross interest groups insistent upon gaining evidence to assist criminal investigations at all costs.
In contrast to misconceptions that shield laws would create carte blanche protections for journalists, the safeguards afforded in recent proposed legislation did not extend to information relating to violent crimes or eyewitness accounts. Thus, while a Texas shield law would protect confidential sources and encourage the free flow of information, it would not do so at the expense of the justice system.
A journalist's privilege, under proposed legislation, would be analogous to the attorney-client privilege, which ceases to exist when the attorney's services are sought to enable or aid the commission of a crime or fraud.
A shield law with qualified privileges strikes a sensible balance. It would ensure the First Amendment would function as intended without encouraging recklessness in journalism or the facilitation of criminal activity.
Contrary to recent interpretations, the U.S. Supreme Court recognized a qualified constitutional reporter's privilege in the seminal case of Branzburg v. Hayes. While the court held that there was no privilege that allowed reporters to refuse to appear before a grand jury or to answer questions about crimes they may have witnessed, the majority opinion also held that grand jury investigations must operate within the limits of the First Amendment and document subpoenas must be issued in good faith.
The court even acknowledged that "without some protection for seeking out the news, freedom of the press could be eviscerated." In his concurring opinion, Justice Lewis Powell went further by advocating quashing subpoenas, whether issued in good faith or not, if they sought "information bearing only a remote and tenuous relationship to the subject of the investigation."
In the three decades since Branzburg was decided, federal and state courts have increasingly found less and less protection for the press. The diminishing protection afforded to the press is less a product of our judicial system favoring disclosure of information and more a punishment of journalists who refuse to become an investigative arm of the government.
Critics of shield laws point to the current state of international affairs, namely heightened threats of terrorism and the war in Iraq, as a reason to curb the free flow of information. Those critics forget, however, the stupor in which the press found itself post-9/11 with inaccurate coverage of alleged weapons of mass destruction and the urgency to enter the war in Iraq.
Public officials should not be able to hide behind the veil of protecting vital interests to make unilateral decisions unchecked by an educated constituency.
The time has come to move the pendulum toward the robust press our founding fathers envisioned as a key protector of our rights. As stated by Ronald Reagan while governor of California, "A free press is one of this country's major strengths, and the right to protect the source of information is fundamental to a newsman in meeting his full responsibilities to the public he serves."
Especially during war, when the free flow of information is essential, the time is ripe for national and state legislators to protect the press and prevent journalists from becoming the story in the process.
Beckworth is a partner and Wynne is an associate with the Houston law firm of Watt, Beckworth Thompson & Henneman L.L.P., whose practices include representing media and individuals in First Amendment and prepublication matters, and in litigation.
Some examples of filters: The Iraq war and the economy. Only negative news permitted.
Some examples of distortion:
Examples of MSM inventing news:
This institution deserves no special treatment. In fact, they deserve greater scrutiny. Their rights should be curtailed to resemble the rest of the country. Someone who is slandered in the media should not have to prove malice, for example. They should specifically be prohibited from publishing classified information. No "Pentagon Papers" defense. It's like receiving stolen goods. If a reasonable person would conclude the information is classified, it should not be published. In fact, the reporter should be obligated to report the leaker or be charged as an accessory after the fact.
I think I will call his office tomorrow. If he still supports this bill, he is clueless and should not be considered as leadership material.
FreePaul, I agree with you: Let's have an "Honesty in Media Law" and hold these would-be media-priests accountable.
You are talking about Vallandigham, I presume?
I am impressed sir, and there is no /sarcasm tag attached.
Lincoln truly nailed the best solution, although I am sure there were sleepless nights.
Agree. The journalists to be covered by first amendment protection shoud be only authorized personnel during time of war. Any other publication of National Interest during wartime for a crime, not for news.
First amendment does not cover broatcast media.
Ditto.
HA!
There ought to be a special prison for "journalists" who work against America!
"I hate newspapermen. They come into camp and pick up their camp rumors and print them as facts. I regard them as spies, which, in truth, they are. If I killed them all there would be news from Hell before breakfast."
William Tecumseh Sherman
here is no provision for the sanctity of sources in the Constitution. Espionage and treason are still valid charges.
The press is attempting to do a run around of the law by declaring themselves the fourth branch of government, answerable to no one
You have pretty much summed up my feelings on the subject.
BUMP. Well stated.
Then again this is the same media that ran transcripts of an illegal tape recording of a legal phone call between Newt Gingrich and his legal team, And this media now wants to poo poo the president for "evesdropping" on "domestic" phone calls?
They are waging a partisan witchhunt and nothing more. Zogbyism is my term for it but it never caught on. Rush is now calling it "the drive-by media" for the way they attack a political target and then run on to the next story without having to answer for their own behavior.
The Houston Comical and other papers have been caught falsifying their circulation figures. Generally that is done to raise advertising rates.
That is a crooked business practice to gouge a customer. And it happens at numerous publications. They should be required to confess their sins to their customers on the front page, above the fold (where it would be visible on the newsstand, in the newspaper box, and seen as the paper lies on the bottom of a bird cage.
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