07/19/2011 09:33 am ET | Updated Sep 18, 2011

Murdoch-Gate Is a Media Feeding Frenzy of a Media Feeding Frenzy

The economic forces that pummeled every American newspaper from the New York Times to the San Francisco Chronicle have barely disturbed Rupert Murdoch's media properties. The Wall Street Journal, for one, has not only weathered the storm that decimated competitors' newsrooms, but it has added editorial staff, news features and online resources.

This considerable achievement, however, did nothing to insulate News Corp from the firestorm of scandal involving its tabloid newspapers in Great Britain. A besieged Murdoch has had to shutter the News of the World in London, cancel a strategic satellite-TV acquisition, jettison long-time News Corp editors and executives by the masthead, and hunker down with his high-powered lawyers to map out strategy for saving his company... and himself.

As this story unfolds, one should bear in mind that this is a media feeding frenzy of a media feeding frenzy. We are watching the usual excesses of British tabloid journalism, squared. Some perspective is in order: It's summertime; breaking news is in short supply; a surfeit of reporters in London is chasing a shortage of stories in one of the world's most overheated media markets.

And, most important, the prospect of Murdoch's downfall, which must be rated a distinct possibility at this point, is enough to create an orgy of schadenfreude among journalists and media executives everywhere.

This is not to excuse News Corp's conduct. The most serious charges to have surfaced so far focus on the hacking of voicemail accounts belonging to public officials, celebrities, and private individuals. These actions are crimes (in the US as well as in England) and should be prosecuted. But as News Corp editors and reporters are placed under arrest, charged with felonies and compelled to testify about sources and stories, let's pause for a moment before piling on.

Breaking the law in pursuit of news is a crime. Journalists have no immunity to laws of general application. Reporters and editors in the US understand this and, in my experience, refrain from illegal measures for obtaining information. If American journalists are more scrupulous about legal rules than their British counterparts, that may be because First Amendment protections favoring the press give American journalists a stake in the legal system -- something that British journalists, subject to arbitrary censorship and injunctions from hostile courts, do not share.

That said, some of America's best journalists push the limits -- obtaining information from sources who break the law -- to produce important news stories that otherwise could not be written. Consider articles based on classified information, or that result from the breach of federal grand jury secrecy (for example, the Chronicle's reporting that led to the prosecution of Barry Bonds), or are based on corporate trade secrets that have been taken by disgruntled employees. In these and other cases, journalists depend centrally on information supplied by sources who commit crimes, either in obtaining the information or in giving it to journalists (or both).

The immunity of the journalist, despite the liability of the source, is a crucial distinction in US law and First Amendment jurisprudence. But outside journalism and legal circles, the distinction is not so obvious. Demagoguing politicians incensed by the hacking scandal are unlikely to appreciate the difference between voicemail-hacking committed by a journalist's source, acting independently, and voicemail-hacking by the journalist himself. Out of such confusion can emerge investigations and legislation posing grave threats to civil liberties.

News Corp's British publications also stand accused of paying bribes to news sources. Although actual bribes should, of course, be prosecuted, some skepticism is in order here, too. "Checkbook journalism" has become a common practice in certain quarters of the US news media, especially television networks competing for exclusive on-camera interviews. Only last month, CNN confirmed to Howard Kurtz that it had paid for photos sent to Rep. Anthony Weiner by a woman to whom the priapic Congressman had sent one of his trademark digital greetings. A recent New York Times article detailed numerous cases of US networks paying for access to sources, often under the guise of purchasing licensing rights.

Public outrage over questionable payments by London tabloids could easily morph into public demands for a legislative response targeting American media companies. But, while checkbook journalism is deplorable, and though some of its American practitioners might even welcome government intervention to curb it, any legislative solution would be fraught with risks to free speech.

The list of News Corp staffers who have resigned, including Les Hinton, head of Dow Jones & Co. (and publisher of the Wall Street Journal) and Rebekah Brooks, the head of News International (who was also arrested), gets longer by the day. They should not be written off by the press as criminals -- not yet, at any rate. What is needed is measured, thoughtful reporting and a dose of due process.

Let's see what the evidence shows.


Peter Scheer, a lawyer and journalist, is Executive Director of the First Amendment Coalition (FAC). The views expressed here are his own, and do not necessarily reflect the views of the FAC Board of Directors.