Eat The Press

Give Me Liberty, Or Give Me The Sanctity Of The Grand Jury Process!

NYT |  Posted Monday November 27, 2006 at 12:22 PM

Today the NYT's David Carr writes on the proliferation of subpoenas for journalists in grand jury cases, and the ensuing jail time when sources, claimed protected by journalistic privilege, are not revealed. He cites the example of Eve Burton, general counsel for Hearst Corp., whose job description now includes the "chronic, grinding task" of "keeping Hearst reporters out of jail." Burton's department has received 80 subpoenas in the past year and a half, as compared with "maybe four or five" in the preceding two-year period. Meanwhile, the New York Times is currently fending off a subpoena for phone records of reporters Judith Miller (again) and Philip Shenon to uncover their confidential sources in a case relating to Islamic charities. The NYT has asked the Supreme Court for a temporary injunction of the government request; the Justice Department has asked come back and specifically asked the Supreme Court to ignore them. And a federal court plans to investigate the confidential sources of Washington Times reporter William Gertz regarding "improper communications" from government sources. Meanwhile, Josh Wolf remains in jail for refusing to testify and hand over videotape that may not even be relevant to the grand jury investigation that's jailing him for it. Says Burton: "The culture of the press as an independent body is now under attack and if this continues, will come to be seen as an investigative arm of the government."

Currently, Burton is seeking to defend two San Francisco Chronicle reporters, Lance Williams and Mark Fainaru-Wada, from being jailed for refusing to reveal who leaked grand jury information in the Balco steroids case; if jailed, they'll face longer sentences than any of the actual defendants in that case. Carr hits it on the head right here: "But government prosecutors, in the name of protecting the sanctity of the grand jury process, are still trying to throw Mr. Williams and Mr. Fainaru-Wada in jail for 18 months." (Emphasis added.)

Something is out of whack here. The deprivation of liberty under law is supposed to be a high bar, reserved for serious matters of crime and punishment. There may well be arguments on a case-by-case basis of the urgency of revealing confidential information, but the urgency of enforcing the muscle of the Grand Jury process should not be one of them. Josh Wolf's incarceration — with the request for review, and for bail, denied — is a particularly egregious case, especially since the court threw the burden of proof on Wolf rather than his accusers. "This young blogger does not represent any threat to national security, so keeping him in custody is a completely disproportionate step," said Reporters Without Borders in a statement following the court's ruling on Wolf. Similarly, the Balco defendants have already been sentenced; giving Williams and Fainaru-Wada a harsher sentence serves no judicial purpose.

Well, except intimidation. If that's the new judicial purpose, we're going to need a free, fearless press even more.

Related:

Imprisoned Vid-Blogger Josh Wolf Denied Request For Hearing, Bail [ETP]
Press Freedom: US Drops To 53rd Place [HuffPo]
Assault On Press Freedom [SF Chronicle]