Sacrificing the First Amendment
Boy, I'll tell you, there is something really insidious going on here.
A woman named Toni Locy is being held in contempt of court because she won't reveal her sources from a story she wrote in USA Today over six years ago.
I have just finished shooting a film called Nothing but the Truth which deals with this very topic. Kate Beckinsale plays a reporter who goes to jail protecting the identity of a confidential source who reveals to her the name of a CIA agent. The prosecutor in the film cites national security as a reason to coerce Kate's character into submission. It becomes the film's central conflict.
In her article, Locy revealed that Stephen Hatfill was a prime suspect in the government investigation of the 2001 anthrax attacks. Hatfill has sued the government for destroying his reputation. U.S. district court judge Reggie Walton, the judge in the case, is ordering Locy to reveal to him and Hatfill's attorneys who it was that gave her her information.
Judge Walton has found an unusual way to enforce the contempt citation. He wants to fine Ms. Locy on a daily basis until she talks. Its starting at $500 a day but will eventually grow to $5K a day. What's really interesting is that the judge is considering (at Hatfill's request) not allowing USA Today or Gannett to pay the fines. This is even more damaging than being sent to jail. After all, a few days out of the joint and you can go back to life as usual. The same can not be said for recovering from bankruptcy. If all this stands, Locy will be financially wiped out for having done her job and done it well.
Hatfill certainly deserves remedy for the damage done to him. But the First Amendment can not be sacrificed for his benefit... and sacrificed it will be...
Simply stated, sometimes journalists can only get their information from informants who must remain anonymous in order to protect their careers and sometimes even their lives:
Watergate: Confidential sources.
The Pentagon Papers: Confidential sources.
Enron: Confidential sources.
The examples of anonymous sources enlightening society, holding the government or corporations accountable for their behavior, goes on an on.
True, sometimes, anonymous sources, when merely stating opinions or running a smear campaign, are certainly cowards. I have no respect for those who spoke under the veil of secrecy to the New York Times in last week's attack on John McCain. A prominent first amendment attorney told me he feared the proposed Federal Shield law now before the Senate may well be shut down because of Republican anger at the New York Times article.
However, when reporters are in the business of obtaining hard facts that service the free flow of information, journalists should have a right to obtain that information without fear of personal ruin or incarceration.
The ability of the press to print their stories without the government trying to get them to betray their sources is as essential to a free press as the ink it is printed with. Otherwise, who will hold accountable those who hold power over us? For what is the nature of a government without accountability? We should all shudder at the thought.
And so should Judge Walton.
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What have our hallowed democratic nominees said about this horrible miscarriage of justice?
To: Rod Lurie
You wrote: "In her article, Locy revealed that Stephen Hatfill was a prime suspect in the government investigation of the 2001 anthrax attacks."
In reality, Dr. Hatfill has NEVER been a "suspect" in the investigation of the 2001 anthrax attacks. The FBI has said so many times.
Therefore, if Locy "revealed" that, she was writing FALSE information. Like others involved in the lawsuit, she was probably listening to DOJ lawyers who want to curry favor with the MEDIA. They told the media what the media wanted to hear.
In one case, we now know the FBI gave FALSE information to a top lawyer in the Department of Justice as part of a "sting" operation to see if he would leak it. He did. He told Newsweek that bloodhounds had gotten Dr. Hatfill's scent off of the anthrax letters. And that lawyer is now taking the fifth in depositions out of fear that he will be prosecuted for revealing information from confidential government files.
You wrote: "However, when reporters are in the business of obtaining hard facts that service the free flow of information, journalists should have a right to obtain that information without fear of personal ruin or incarceration."
The problem is: There were NO HARD FACTS in any of what the media wrote about Dr. Hatfill. It was nearly all NONSENSE.
If you check the facts, you'll see that things happened like this:
Conspiracy theorists believed the anthrax attacks were the work of the Bush Administration to destroy the Biological and Toxic Weapons Convention (BTWC). The theorists looked around for someone they thought might have done it, and they settled on Dr. Hatfill.
They campaigned for EIGHT MONTHS to get Dr. Hatfill publicly investigated. (The FBI had cleared Dr. Hatfill in November of 2001, shortly after his name first came up. But, to conspiracy theorists, if someone is not PUBLICLY investigated, then they aren't investigated at all.)
Nicolas Kristoff of the New York Times joined with the conspiracy theorists and started writing columns pointing the finger at "Mr. X" who he later admitted was Dr. Hatfill. The head of the conspiracy theorists gave talks at colleges about how the FBI was covering up for Dr. Hatfill. She wrote papers saying the same thing, papers which were published on the Federation of American Scientists web site. She talked with every newspaper reporter who would listen to her, here in the U.S. AND abroad. People were writing their congressmen to demand action, and congressmen were demanding action from the FBI to arrest the person the conspiracy theorists were talking about.
Finally, after EIGHT MONTHS of campaigning, she was summoned before a group of senate staffers where she told them that the FBI was covering up for the anthrax mailer. Those senate staffers (for senators Leahy and Daschle) told the FBI to give them a progress report on their investigation of Dr. Hatfill, and one week later the public investigation of Dr. Hatfill began.
The media was ready for it and went into a feeding frenzy. Truth was forgotten. They just wanted to see Dr. Hatfill hung.
And it was shortly after that when Attorney General John Ashcroft was cornered by some journalists, and he attempted to defuse the issue by saying that Dr. Hatfill was just one "person of interest" from among 20 or 30.
The media distorted what he said and began calling Dr. Hatfill a "suspect" or "the only named person of interest."
Toni Locy is PROTECTING government officials who committed illegal acts.
Hopefully, her "sources," if they really exist, will come forward and let her off the hook.
Ed Lake
www.anthraxinvestigation.com
I forgot to add this:
According to The New York Times:
“There’s not a scintilla of evidence to suggest Dr. Hatfill had anything to do with it,” [Judge Walton] said, yet the public notoriety has “destroyed his life.”
Ed at www.anthraxinvestigation.com
The Pentagon Papers: Confidential sources.
Enron: Confidential sources.
Watergate: Confidential sources.
These examples have little relevance to the type of "anonymous source" reporting going on today.
In the Pentagon Papers example the anonymous source, Daniel Ellsberg, had been working with several Senators for two years to get the documents made public. Only after that failed did he goto the NYT. His previous efforts with the Senate made it obvious to everyone who he was, and he formally came public within 2 weeks of the first article in the NYT.
Also, the NYT was reporting on 7,000 pages of government documents in their possession, and they told their readers as much. That is very different from simply reporting hearsay and rumors from single unnamed sources. Sources in the later case, unlike Ellsberg, take zero personal risk, so it is very easy for them to simply lie to advance some ulterior motive, and the press today appears to have no problem helping them (since the reporter often approves of the motive).
I’m not sure who you think the “confidential source” in the Enron example was. Some people think Sherron Watkins was a “whistleblower” but she only blew her whistle in a memo to the company CEO.
The press had little to do with the ultimate collapse of Enron. Jim Chanos, “the man who called Enron” was a vocal, public critic of the company for years. The press only caught on when Enron finally starting having obvious operational problems. Bethany McLean of Fortune was the first reporter to really dig in, and she openly credits Chanos for spelling it out for her. His source wasn’t some insider at the company, it was his own excellent financial analysis.
If anything, the press aided Enron in maintaining a patina of respectability – NYT columnist (and paid Enron advisor) Paul Krugman deployed his credentials as a Princeton economist to regularly sing praises to Enron. Forbes had Enron on the cover of its annual “America’s Best Respected Companies” issue less than a year before the Ch11.
As for Watergate, I recommend reading “All the Presidents Men”. The editors at the Washington Post went to great lengths to ensure anonymous sources were cross referenced and verified, delaying the story for months but ensuring the veracity of the story the paper’s integrity. And in the end there was really just one important anonymous source (deepthroat - William Felt) and everything he said was verified by other, named sources.
Its almost a quaint notion that the mainstream media would think for an instant about publishing the most outlandish rumors today. They are the ones destroying press credibility, not a few judges presiding over very rare cases.
http://dirckthenoorman.com/
This is another "false issue" invented by a government run amuck. Journalists should never be forced to reveal their sources - period. This is not to say that they shouldn't be held accountable for their actions. If they make outrageous, libelous claims - then they should have no protection in the legal system from having the burden to prove the voracity of their claims. The choice then if they decide to reveal their sources or not is up to them - if they don't have sufficient proof to back up their story or claims and they face the possibility of civil damages - that's the risk they take for being in the journalism business. But this whole circus act concerning national defense and state secrets clearly has no place in a society that places an informed and empowered self governing electorate above the physical machinations of a government. The United States has never produced solid reasoning for secret police, secret courts or secret governments within governments. Each time these bastarized concepts have been put forth by the scoundrels who stood to benefit from them - they have been shot down by an informed, self governed, electorate. This latest attempt to undermine and free and unencumbered press is one further example in a long line of examples.
We don't need the FIRST AMENDMENT.
Because GWBush sez so.
Get it?
Bush says "BOO!" and everybody's too scared to do anything but COMPLY with his insanity.
There are no statesmen or honorable people in
Congress, Wash,DC. Lobbyists, corporations run the show. They've run the USA into the ground and robbed MIDDLE-INCOME AMERICANS into bankruptcy.
Out of control, unregulated industry is B-A-D.
The gov't isn't doing its job to protect Americans from IMMORAL, EVIL, GREEDY PROFITEERS.
I happen to be a journalist and so, it may surprise some that I am against a national shield law. Here's why: it would be a greater threat to the First Amendment than the occasional bind a reporter may find him/herself in for not revealing sources. Give reporters a privilege that the general public doesn't have and you give the federal govt the right to decide who is a reporter. And who isn't. The easiest way to destroy a free press is to give the federal government the right to decide who gets that privilege which is another way of saying, the government gets to decide who to license and who not to license.
Why might this be a problem? When Michael Moore went to Cuba to film "Sicko" the government tried to censor and fine him because he hadn't been pre-licensed by the govt as a journalist (note that the First Amendment is normally read as a prohibition against the licensing of journalists). But the Bush administration tried an end-run around the First Amendment by taking the position that the U.S. embargo against Cuba trumps the First Amendment guarantee of a free press. THAT's censorship.
When a journalist gives his or her promise to go to jail rather than reveal a source, and a judge insists that the journo break that promise, that's called an ethical dilemma, not a First Amendment issue. It's far more important to keep the govt out of the press than to give a journalist, who makes a promise of confidentiality, a get out of jail free pass. Only rarely does any journalist face a subpoena. But government control of journalism via licensing would become an everyday occurrence with a federal shield law.
AnitaBee,
You said, "When a journalist gives his or her promise to go to jail rather than reveal a source, and a judge insists that the journo break that promise, that's called an ethical dilemma, not a First Amendment issue."
I really do not mean to be insulting here, but frankly, if you are, in fact, a "journalist", then you are a prefect example of why journalism is in such a sad state in our so-called democracy. Let me break this down for you:
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
"[…] more and more journalists are being ordered to expose their confidential sources. The result may well be a loss of information vital to the public." --- http://www.firstamendmentcenter.org/about.aspx?id=14655
You illogically present the scenario that the Bush administration’s attempt to censor Michael Moore’s film is a solid argument against a law that shields journalists from being forced to reveal their sources. There is really no appropriate correlation between the two.
The crux of your argument: "It's far more important to keep the govt out of the press than to give a journalist, who makes a promise of confidentiality, a get out of jail free pass."
Do you not see that allowing the government to jail journalists who refuse to reveal sources is exactly the opposite of your proposition, "It's far more important to keep the govt out of the press[...]"?
Again, I do not mean to be insulting, but it does not take a particularly intelligent person to understand that if reporters can be manipulated by the government by being sent to jail, or worse, then sources will not be willing to provide information because the reporters will not be willing to protect them. This is the exact scenario the First Amendment was intended to avoid.
-----"Congress shall make no law [...] abridging the freedom of speech, or of the press [...]".
Allowing the government to incarcerate agents of the "free press" because they refuse to divulge their sources would clearly, without question, be an infringement on this SIMPLE guarantee of a "free press".
Yes, it does appear that you mean to be insulting but no, I'm not insulted because your argument is based on faulty assumptions.
There is a difference between freedom of the press and special rights for the press.
"Congress shall make no law... abridging the freedom... of the press." This doesn't mean that members of the press get to say no to subpoenaes or otherwise get to ignore laws that apply to others. That wouldn't be freedom of the press but special privileges for certain citizens that are denied to others.
However, the federal government does have guidelines for courts so that the court must try other avenues before pressuring a journalist for information. There are other provisions as well that give journalists more leeway than the average person.
The reason that news organizations push for a federal shield law is that they know that any licensing scheme will probably immediately give any of their employees a license. But freelancers like myself, or independent publishers like Arianna Huffington or documentarians like Michael Moore, or people who have revealed what the govt didn't want to have revealed in the past might, under a Bush-like administration either fail to get licenses or see their licenses revoked.
So, while a shield law sounds good to those who haven't done the research, it's quite controversial among those who live this life and who HAVE. That said, I realize that people hang onto their opinions and it's difficult to change minds with ne
I agree with everything you said but until Congress addresses this issue, the Supreme Court I believe ruled that when so ordered journalists have no special rights and t hey must reveal their sources. I realize this ruling was for a Federal Grand Jury but obviously no one bothered to explain this to Walton (if the previous ruling had any limitations). I'm not sure there's an easy solution to this short of making sure one transfer all their assets for flipping the proverbial bird and the judge.
Hatfall became for all practical purposes the only suspect in the October 2001 Anthrex terror attacks. The Federal investigation was screwed up so bad that even if Hatfeld, who may have been the one to do those terror acts, the Constitution protected him. His life was ruined by someone. He wants to sue that person that defamed and slandered him or better yet, sue a deep pocket like big media corporations for a jackpot civil case judgement.
Problem in this case is that a reporter has to protect their source or they can never be trusted to do their job to inform the public. To me the Judge is wrong in his decision, and unfortuntally we fear the Circuit Court of Appeal and the US Supreme Court will probably rule against the reporter and ruin her for the rest of her life either way she goes. Let us hope a Democratic President will protect reporters and whistle blowers and go after the real criminals in politcs.
Where in the first amendment does it say that "members of the press" have more or different rights from regular citizens?
LeonBNJ wrote:
"Problem in this case is that a reporter has to protect their source or they can never be trusted to do their job to inform the public."
This sentence has some serious problems. "has to protect their source"? This may be true from the standpoint of some professional ethics, but it has nothing to do with the law. If the leaker in this case had leaked to a friend, and that friend allowed his name to be printed in a newspaper as a source of the leak, he could easily be forced to reveal his source, since he could not claim to be a member of the press. Why is the reporter any different?
We may lament the plight of the reporter who was used. But what about the private citizen who's life was destroyed (aided by an uncritical press) by the government.
"or they can never be trusted to do their job to inform the public"? It might be nice if the public trusted 'the press' to inform them, but again what does that have to do with the law?
The fact of the matter is that "freedom of the press" is too often interpreted to mean professional journalists have some special rights or status, distinct from that of the unwashed masses. It is as if every time a business man were charged with breaking the law in an attempt to increase profits, he claimed special rights since the constitution mentions 'commerce'.
the reporter in this case was a tool who allowed herself to be used by some dim bureaucrat to destroy the life of some likely innocent man. the reporter could have done her job and attempted to verify the claims, but she likely didnt care - the scoop was enough. Now she is protecting a source that obviously lied to her, not to uphold some higher ethical standard, but to obscure her own lack of skill and professionalism.
Sue her into the ground. And let it be a lesson for the next ethically challenged news hound who considers publishing an obviously false story sourced to an anonymous, compromised bureaucrat.
http://dirckthenoorman.com/
None looks at statistics but, me. The bush family done it. 1968, Bobby, George Wallace, ford, john lennon, Mlk, Carter, clinton
First Amendment? We still have a First Amendment? After years of illegal wiretapping, media sucking up to the Powers That Be, the separation of Church and State being destroyed, massive secrecy in all governmental doings - we still have a First Amendment?
Did Clinton Water Board? How Can BushnCo Be Immune From Prosecution?
When Bill Clinton had oral sex with Monica Lewinsky, in the heat of the moment was he in fact experimenting with fluid to ascertain the effects of simulated drowning? Come, come, I hear you say, why regurgitate old news?
During the Clinton impeachment hearings Newt Gingrich, married, was having an affair of the heart (not sex, only Bill Clinton did that) And there’s Giuliani’s hot affair.
It doesn’t seem to matter what lies and hypocrisy the Republicans serve up, a gullible public swallow it.
While I have your mind in a certain groove, think about this hypothetical. When Republicans designed “The New American Century” they planned in the 90’s and even earlier their grand scheme of a world hegemony. Did they in fact plan the Clinton impeachment to defuse what they knew would be their GOP president’s crimes and therefore remove willingness by the present generation to impeach their man along with their villainous women and men who have committed High Crimes And Treason?
Absurd? Given Rove’s and other Republicans Machiavellian propensity for reprehensible schemes and actions, it’s not far fetched.
Regardless, the public is unwilling to swamp their political “representatives” with simple demands of and for impeachment. Go to www.AfterDowningStreet.org to click on “National Impeachment Resource Center” for tools you can utilize.
You know a lion leading one hundred lambs is more powerful than a lamb leading one hundred lions.
View Congressman Robert Wexler’s interviews on video at www.wexlerwantshearings.com and tell me you’re not looking at a lion.
The Old Testament calls for an “eye for an eye” and a “tooth for a tooth”. I am not calling for the water boarding of Mr Bush. I am calling for impeachment for High Crimes And Treason.
This is from Sibel Edmonds website. Edmonds has evidence of High Crimes And Treason. www.justacitizen.com
“A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and carries his banner openly. But the traitor moves amongst those within the gate freely, his sly whispers rustling through all the alleys, heard in the very halls of government itself. For the traitor appears not a traitor; he speaks in accents familiar to his victims, and he wears their face and their arguments, he appeals to the baseness that lies deep in the hearts of all men. He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of the city, he infects the body politic so that it can no longer resist. A murder[er] is less to fear.”- - Marcus Tullius Cicero
Will Solly
Nevadans For Change
http://www.oilempire.us/pnac.html
Wexler Grilling Rice http://www.wexlerforcongress.com/multimedia.asp?ItemID=235
The subject was clearly about reporters' protecting their sources, but some clowns just cannot resist the slightest temptation to bray about anything republican. And Solly's tome is boring, besides.
Indeed, there once was a valid reason for reporters' to clam up, but any such validity has long since ceased. "Journalism," if one can call it that, is now on a par with spectator sports, in effect, it depends what side the writer is on. And, too, read the pages of the New York Times (as a mere example) and separate truth from fiction if you can. Today's "reporters" curry favor from politicians to get the scoop, "commentators" like Novak have grown rich at it -- books, you know.
Wether it is print or broadcast, the media in this country has been corrupted by profit, so those who can go out and get the story get the glory........but then, there's a little matter of invention, the lack of corroboration, investigation. These elements of responsible reporting have been replaced by reliable sources, inside sources, informed sources, etc. Good to see judges are stepping in.
Of course the Courts should step into this case.
I'll bet you a buck, however, that you're opposed to using "the fairness doctrine" to try to get wingnut talk radio under some element of control.
Babes,
Yes, the article was about reporters protecting their sources, but it was also about the current attempts by the powers-that-be to undermine that valued asset through a stong-armed politicized judiciary.
-----Watergate: Confidential sources.
-----The Pentagon Papers: Confidential sources.
-----Enron: Confidential sources.
-----"However, when reporters are in the business of obtaining hard facts that service the free flow of information, journalists should have a right to obtain that information without fear of personal ruin or incarceration."
While I will grant you that Solly tended to drift a bit, the point of the post you attempted to belittle was fairly clear, and on point with its closing quoted paragraph, whether you found it boring or not. The fact is that our government has suffered a coup that has undermined the principles of the entire Bill of Rights, as well as the Constitution.
Your revealed preference for a politicized judiciary that interferes with the freedom of the press is anathema to American principles, plain and simple.
Out of curiosity (perhaps you will know) have there been any instances of a defense attorney demanding to withhold information on a national security basis other than when the government has been brought to court as a defendant?
It seems one thing when a first amendment case regarding reportage comes to court on a case by case basis as opposed to its being a state (federal) mandated norm. The first would seem to often attempt to define and further elucidate the 1st amendment often with harm to the seekers of its protection. The second would seem to obviate the 1st amendment with harm to all.
"Hatfill certainly deserves remedy for the damage done to him. But the First Amendment can not be sacrificed for his benefit..."
"The ability of the press to print their stories without the government trying to get them to betray their sources is as essential to a free press as the ink it is printed with."
The rather important word JUSTICE (maybe the most important word in Law and Government) is passed over in the first quote, in favor of the word "remedy"; and the concept of JUSTICE (again, perhaps the most important concept in Law and Government) is ignored completely in the second quote, and in it's place we have:
"...the government trying to get them [the press] to betray their sources..."
Would it be untrue to instead say the government (specifically in this case, Judge Walton) is trying to get JUSTICE?
...trying to get JUSTICE, and make a JUST decision, in perhaps a terrible instance of reputation-destroying slander and libel?
...trying to discover the facts in the case, so that JUSTICE may be served?
It's too easy to overlook the concept of JUSTICE (and omit the word also) in matters such as these; but that's exactly what our Judicial system is often trying to achieve, when it Compels Testimony from Witnesses, in order to establish the Facts.
The high (highest) concept in Law and Government shouldn't be overlooked too quickly, in the name of the First Amendment, and in the case of someone refusing to cooperate with a Judge's instructions in trying to establish fact.
JUSTICE should never be "sacrificed" on the altar of privacy... never. It would betray the whole purpose, of having Law and Government.
Unless you would disagree, and think that those who slandered you in the newspapers, and ruined your reputation to all your friends and family and the whole world, that the true authors of such a destructive act, should be shielded by their "privacy"?
Maybe you think that... maybe you think so little of JUSTICE, that you would lose sight of it, even if it was what you wanted and required (and sued) for your own self.
"Justice" is a perfection, a fleeting target all but outside the purview of humans. (Justice for some perceived wrong done to you or one you love would be met out how? What justice will be the ramifications thereof?) "Law" is writ and fleetingly and mincingly (and often menacingly) interpreted by humans.
How "justice" can be perfected? I haven't a clue. There's no reason to have faith beyond situational faith in the courts.
I do not believe that bankruptcy allows a discharge of such fines. RWE continues to demonstrate to me why I never trust what the right says any more at all. If the informations casts the right's ideology or leaders in a bad light it must be false and the source a liar. If the information discredits the left it must be true. Their reasoning starts and stops with these propositions. You might as well be talking to my cats.
The First Amendment guarantees the "freedom of speech" and it would be unlawful for somebody to be punished for purely exercising this right. However, in this case the reporter isn't being punished for her article, she is being punished for not revealing her source in direct violation of a court order. This is not protected. The press doesn't have any special rights to speech that isn't available to every other person. Imagine if everyone took a similar position to testimony in a court of law claining that they didn't have to testify because they had some particular interest in not doing so. What reporters often miss in these types of cases that although there is a public interest in bringing stories to the public, there is an even greater public interest in allowing justice to prevail in a court of law. For without justice in civil and criminal cases we wouldn't have a civil society that respects such things as speech rights in the first place.
Good reply, this case has nothing to do with the First Amendment, for all we know the reporter made the source up.
The issue in this case isn't freedom of speech, it's freedom of the press. Two often related but different things.
Ah...you missed my main point. The so-called "freedom of the press" isn't a right put forth in the U.S. Constitution, it is merely an extension of "freedom of speech", which is named in the First Amendment. The rights of the press are the same exact rights as given non-press, they are not specifically granted special rights under the Constitution by the nature of their job. You might as well say "freedom of the dogcatchers" or "freedom of the doughnut shop owners". No matter what your profession you have the exact same rights to speech as everyone else and can't circumvent the justice system by refusing to testify when required to disclose information necessary to a criminal or civil case. Besides, isn't it ironic that the press claims part of its free speech rights include the right not to speak in a court proceeding.
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