A License to Smear

Today’s Washington Post editorializes in favor of a House bill that aspires to become the “Free Flow of Information Act.” It is a type of statute known more generally as a “reporter’s shield” law, which basically excuses reporters from testifying in court unless special conditions are satisfied. The editorial coincides with the House Judiciary Committee’s markup of the bill, which took place today. (I understand from Committee staff that the bill was passed by voice vote, after two amendments, the text of which is not yet available.)

The editorial was particularly interesting to me because just last week the Post rejected an op-ed piece I submitted on this very same piece of legislation. My rejection letter said the piece “was carefully reviewed, but unfortunately The Post is not able to publish this piece.” I assume the phrase “not able to publish,” which is clearly untrue, was meant to spare my feelings, which I appreciate. But today’s editorial makes clear that the Post takes a very different substantive view of the legislation than I do. They disagree strongly with me. In fact, they “joined other media companies to lobby Congress on behalf of the bill.” Maybe that’s why they were “not able to publish” my opposing view.

Let me say clearly: That is all the reason the Post needs to keep my piece out of their paper. It’s a free country, and the Post is a private speaker, just like I am.

But in a way, that’s the heart of the problem with the legislation the Post endorsed today. The Post and I, we’re just private speakers, and when the courts need information from us in order to do justice in individual cases, we both share the same obligation to make that information available. I can’t refuse to give evidence of a crime just because the criminal wouldn’t want me to; neither should the Post or its reporters. If the Post believes otherwise — believes that it has some quasi-public or quasi-governmental status that should deputize its reporters to make private promises that trump the laws that apply to the rest of us — then something is terribly wrong with the Post‘s philosophy.

Well, as you may guess, I think there is something terribly wrong with the Post‘s philosophy. I’ll have more to say about that tomorrow, when I’ll look at the Post‘s editorial in detail. For now, though, here’s an opposing view on the version of H.R. 2102 that the Post endorsed. The Post‘s circulation, if you count people who read it online like I do, is a gazillion or so, and mine is about 100 on a good day, so if you think my viewpoint better reflects the principles of equal justice under law, make sure you send this link on to others who might have seen it in the Post if the Post had not been so unfortunately “not able to publish” it.

Most people who witness federal crimes are required to testify about what they know. But for the third time in three years, Congress is considering legislation – misleadingly called the “Free Flow of Information Act” – that would excuse reporters from testifying in most federal court cases, particularly when the identity of a “confidential source” is at issue. The bill is an affront to our system of justice.

Advocates for the media say the legislation is necessary to protect whistleblowers, like “Deep Throat” of Watergate fame. But the subpoenas that have prompted media hand-wringing don’t have anything to do with whistleblowers. On the contrary, the cases in which reporters are subpoenaed tend to be cases in which the reporters allow themselves to be used by government officials who disclose sensitive information about private citizens. Some such disclosures are literally criminal, and they can ruin innocent lives.

We know the names of the victims, falsely accused of atrocious crimes by officials who could call press conferences if they were willing to be accountable for their statements. But because the leakers are government officials, the government shows little interest in exposing them. To get any redress, the victim must act as his own prosecutor, and he needs testimony from the reporters who so willingly published the leaks they received. Unless those reporters are required to testify (just like other citizens who witness other crimes), there will rarely be any justice for the victims.

The press claims the special treatment provided by this legislation will promote more government accountability. But if accountability is the goal, why not start by publishing the names of officials who violate the Privacy Act by disclosing sensitive information from government files? Unfortunately, a reporter’s professional incentives to conceal his sources often outweigh his incentives to be candid with his readers. A reporter who can generate interesting stories simply by lunching with the right people is not about to bite any of the hands that feed him.

And if the phrase “anonymous source” still makes you think of Robert Redford in a parking garage, banish the image from your mind. Many “anonymous” sources are actually officials who are openly briefing perhaps dozens of reporters at once. The identity of the source is known to every reporter in the briefing room, but they all promise not to tell their readers who it is. In that situation, the sole purpose of anonymity is to destroy accountability. Why should a federal court be deprived of relevant evidence just because reporters are docile enough to agree to these ground rules?

Ironically, the sponsors of the “Free Flow” bills do not propose to let reporters keep any secrets from them. Their proposed law would apply whenever a “Federal entity” wants a reporter to testify, and “Federal entity” is defined broadly to include courts, prosecutors, and executive or administrative agencies – but not Congress. Apparently, the sponsors think it’s OK to let reporters stiff the courts as long as they answer questions from Congress. Unfortunately, Congress can’t do justice for victims in individual cases. Only the courts can – which is why courts need the truth every bit as much as Congress does.

Ultimately, the issue is not how journalists do their jobs, but how courts do theirs. Journalists are free to report the news as they see fit, with or without anonymous sources. Occasionally, anonymous sourcing will allow reporters to break important stories about secret abuses of government power. But those are not the cases that have the media agitating for a special statutory privilege. The cases generating the subpoenas are those in which reporters have too readily lent a cloak of secrecy to government officials who use it to ruin the lives and reputations of innocent people. Congress should not legislate on the false premise that every leaker is a conscientious public servant in the tradition of Deep Throat.

About 25 centuries ago, Plato gave us the story of Gyges, who found a ring that made him invisible. Gyges probably could have done a lot of good with that ring. But instead, Plato tells us that Gyges used his ring to seduce the queen, murder the king, and assume the throne. Anonymity, like invisibility, is still the enemy of accountability. Anonymous sources occasionally serve the republic (like Deep Throat did), but most leakers work anonymously for the same reason most burglars work at night. When they violate our rights they should be punished, not protected. Giving reporters the right to conceal evidence of such misconduct gives public officials a license to smear.

(I make the same disclaimer here that I made to the Post: namely, that while I am currently litigating these issues against media witnesses, including reporters from the Post, the views here are mine alone and should not be attributed to anyone else, including any client.)

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4 Responses to “A License to Smear”

  1. Free Flow of Misinformation « Reasonable Minds Says:

    […] Posted by Mark Grannis in Citizenship, Public Policy, Constitution, Law, Media, News. trackback Yesterday, I linked to a Washington Post editorial endorsing H.R. 2102, a bill that would severely limit the […]

  2. Mike Says:

    Excellent points.

    Whatever societal interest there may be in allowing reporters to keep their sources confidential from a grand jury in certain circumstances, that interest is vitiated when the very crime being investigated is the leak to the reporter. There are many circumstances in which leaking information is itself a crime — grand jury transcripts of baseball players discussing steroid use, or the identity of a covert CIA agent, to pick two recent examples that come to mind. It makes no sense to create a privilege for the recipient of the illegal leak not to testify where the leak went to a reporter rather than a private citizen. To the contrary, a criminal leak can be far more damaging to society where it is made to a reporter than to a private citizen.

  3. Big Trouble for Corporate General Counsel « Reasonable Minds Says:

    […] what’s needed is a General Counsel Shield Law, which would allow publicly traded companies to disseminate information to the public without […]


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