What I told Dan Rather

If you’re just sick and tired of reading about why the reporter’s shield law currently stalled in the Senate is terrible for the country . . . well, I guess you must be a Reasonable Minds subscriber, because you certainly can’t be sick and tired of reading shield law opposition elsewhere. But if you’re still tuned in on this issue, Dan Rather devoted a segment of his program to it a few nights ago, and it is worth watching online, if only to tease me about it later.

The Rather piece appears at a time when the bar for intellectual honesty about this issue in the mainstream media is quite low. Surprisingly, I think the situation is actually better than it used to be. A couple of months ago, the Wall Street Journal was kind enough to print an op-ed in which I expressed opposition to the “reporter’s shield legislation” that is supported by virtually every news organization and the small handful of corporations that own them all. It was a drop in the bucket compared to all the editorials on the other side, many of them rather transparently based on talking points distributed by trade lobbies like the Society for Professional Journalists and the Newspaper Association of America. But it was almost the first step any major news outlet made toward presenting the argument against the shield law the media lobby wants so desperately.

In the last two months, mainstream media outlets have shown more inclination to feature opposing viewpoints, either as standalone pieces, or as participants in roundtable discussions. Sometimes, unfortunately, shield opponents are included merely as tokens whose names are used but whose substantive views are ignored. A few individual journalists have also written some very good pieces (like these two and this one) dissenting from journalistic dogma on this issue. Others have written columns of bovine dimness. One of the more balanced pieces to appear so far is the one showing in the gallery of Washington’s new tourist attraction, the Newseum. (I have a copy, but unfortunately the Newseum did not purchase Internet republication rights so I can’t post it here.) But Rather’s piece achieves about as much balance while conveying quite a bit more information about the underlying case.

Some who have seen the Rather piece have complained to me that they think I should have been asked to respond to this or that claim by the other people who appeared on the show. In fact, I was asked to respond, and I did so, for about 90 minutes. Obviously only a tiny portion of what I said could fit into the broadcast. Maybe in a day or two I’ll post a few of the points that ended up on the cutting room floor. But for now, watch the version that aired and let Reasonable Minds know what you think.

UPDATE (April 2010):  The show (Episode 318, “A Price to Print”) is now available on iTunes for $1.99.  This link might work.


18 Responses to “What I told Dan Rather”

  1. straightrecord Says:

    If you could hold your views against journalist shield laws after the actions of the current Bush administration, there is something wrong with your thinking.
    You and others with your viewpoint seem to forget that much as you may dislike the idea, the reporters are your access to government. Because they are registered as reporters, they are given front-row seats to the actions of government, not because they wear some kind of halo as journalists, but because they represent the general public that cannot reasonably be accommodated.
    Allowing access to their information-gathering processes is tantamount to closing down access to the information itself.
    Like it or not, they are you eyes and ears. Why would any reasonable person want to restrict that?

  2. Mark Grannis Says:

    Welcome, straightrecord. Your argument would make sense if the press were in fact fostering government accountability in every case. But what the Hatfill/Locy dispute shows is that the press is not always on the side of government accountability. In fact, the press is sometimes quite content to let itself be used as a tool — a tool that the powerful use to smear the innocent. And when the innocent come back and demand to know which public officials committed this crime, accountability is all on the side of the party seeking the sources’ names. When the press is covering up for people who abused their office, there should be no privilege.

  3. straightrecord Says:

    your answer suggests the shield should be based on the press behaving perfectly in every instance. of course we’re not perfect. but, to use an old cliche, that doesn’t justify throwing the baby out with the bath water. any law can be adjusted to prevent anomalies such as the hatfield/locy case. to use that as an excuse to deny protection in all cases is constitutional suicide.

  4. Mark Grannis Says:

    Straightrecord, it seems to me we have a lot on which to agree. Neither one of us thinks the press will behave perfectly, and neither one of thinks that we should let exceptional cases define what happens in all the others.

    To me, that suggests that I shouldn’t use the Hatfill case to argue that the press should *never* enjoy protection, and you shouldn’t use the Pentagon Papers case or Watergate to argue that the press should *always* enjoy protection. Where would that leave us? It would leave courts to decide the matter case by case, based on the needs of justice in particular cases, as the courts do now. Deal? If not, why not?

  5. straightrecord Says:

    i offer a cyberspace handshake, with a caution. i’m not comfortable leaving the final decisions to the whims of a court in an age where court-shopping is quite common. i’d rather the laws and the regulations that put them into play were more-precisely drawn, unable to be interpreted by a nefarious arm of government or prosecutors with narrow agendas. and thanks for your reference to the pentagon papers and watergate, shining examples of why reporters should not have to worry about a legal sword of damocles in practicing their craft honestly.

  6. Rod Apfelbeck Says:

    Nice job Mark. I’m amazed at the way they don’t see any contradiction in “…journalists could lose everything…but so could their sources” but, when it comes to Hatfill, “it’s all about the money.” So if journalists or sources are ruined financially, even if they’re in the wrong, it’s a tragedy. If Hatfill is, even if he did nothing wrong, that’s OK.

  7. Chris Says:

    Can a proponent of these laws tell me how journalists will be held accountable for publishing lies or furthering criminality? A lawyer who does so risks her license. Same for a doctor. I don’t think the proponents of this law see a “journalist license” as a good trade-off for a shield law.

  8. David Fitzgerald Says:

    As too often happens, one of the aggrieved parties, Locy, is trying to turn a legitimate policy question into a constitutional one. Whatever “freedom of the press” means, it surely does not mean that the government has an obligation to tailor its laws and processes to make it easier for the press to do its job. While sympathetic to the idea that some legislation might be necessary so that sources and reporters who are blowing the whistle on public misdeeds may be appropriate, this would be a legal right, grounded in policy discussions and capable of being properly limited and, under certain circumstances, even set aside in the face of more compelling interests. Unfortunately for Ms. Locy, not everything she cares about strongly rises to the level of right necessary for the maintenance of “ordered liberty.”

  9. Mark Grannis Says:

    Fitz, another commentator (I forget who) has expressed much the same idea by noting that the problem with the “free flow of information” rhetoric is that all kinds of very sensible restrictions on our public behavior can be expressed as restrictions on one person’s access to the free flow of information. For example, laws that prevent me from walking into the White House unannounced and without prior security clearance undoubtedly do restrict my access to information, much of which I might find highly relevant to my duties as a citizen in a representative democracy. And of course, because I am a sometime-blogger, those restrictions also restrict the free flow of information to readers of this blog. Hence, “free flow” can never really be more than a slogan; the substantive question is whether information *should* flow freely, and frequently it should not.

  10. David Fitzgerald Says:

    Mark, not sure if you feel comfortable revealing this in a public forum, but, is your client relying on a statutory right of privacy or a common law privacy concept? The question is whether the “leakers” knowingly violated a statutory duty not to disclose the information or whether they were just being careless and using the press to further their own interests? I think the distinction important. If Congress has passed a law that certain information should be confidential, an executive official who violates that law by disclosing the information to a reporter is playing a very dangerous game and it seems that there is no explicit constitutional protection which trumps a validly considered and passed statute in this case. However, if private plaintiffs are merely trying on novel claims based on amorphous common law theories it strikes me that the press may have a legitimate gripe that responding to constant depositions and interrogatories may seriously undermine the constitutionally protected concept of a free and vigorous press. Clearly the absolute right that the media claims to protect their sources is a bridge too far but one could envision either a legislative or judicial construct that protects the free flow of information but also shuts the flow off in appropriate cases.

  11. Mark Grannis Says:

    Fitz, since you asked . . .

    The Privacy Act of 1974 (codified at 5 U.S.C. sec. 552a) prohibits federal agencies from disclosing any “record” about an individual that the agency maintains within a “system of records,” unless the individual consents or some statutory exception applies. “Record” is defined broadly and inclusively (“any item, collection, or grouping of information about an individual”), and a “system of records” is simply a file system or database from which the agency makes individualized queries (“a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual”). The Privacy Act provides for criminal penalties for individual leakers, as well as civil liability for the agencies that violate it.

    Since you raise the question of what the leakers might have thought they were doing, it’s worth mentioning here that the Privacy Act requires agencies to take concrete steps to protect the information and make sure agency personnel know how and why it must be protected. Individual government leakers sometimes claim not to have known that they were disclosing information protected by the Privacy Act, but to whatever extent this excuses the individual it tends to indict the agency’s policies, procedures, and training.

    I happen to think this is a very good law, a necessary check on the ability of unelected and largely unaccountable people within a gigantic bureaucracy to injure or intimidate ordinary citizens on whom the federal government maintains a substantial and growing body of information. It is, of course, possible to disagree — possible to imagine and perhaps even to advocate a society in which every citizen has a right to know whatever the government knows about any other citizen. We could make credit card numbers, social security numbers, medical records, employment applications, and a whole lot more available to any interested pair of prying eyes in vast public reading rooms in Washington, D.C. But Congress has thought it best to avoid that result and create a society in which government records about individuals are generally *not* supposed to flow freely to the public, via the press or otherwise. My simple contention is that whatever one thinks about the way information should flow, those rules have to apply equally to everyone, even reporters. They are citizens, enjoying the benefits of ordered liberty under the rule of law, and as citizens they have the same obligation of truth-telling in court that the rest of us have.

    The USA Today editor who helps Ms. Locy tag-team me in the Rather piece says he assumes that both the reporters and the government officials were acting in good faith in our case. If he really assumes that, he’s not thinking about it very hard. Government officials who want the public to know something it has a right to know can call a press conference, issue a press release, or even phone their pet reporters and leak the information without requesting anonymity. If they request anonymity rather than making the disclosure publicly, I think that speaks volumes about their intent.

  12. David Fitzgerald Says:

    So, one might be able to construct the following argument. Government officials who violate a clear statutory duty not to disclose information to the press get what they deserve when a court forces a reporter to divulge their confidences. In fact, such a result would make it far less likely that said officials would engage in the unlawful activity in the first place and therefore, requiring a reporter to disclose these types of sources furthers compliance with the law. Since there is no statute against disclosing, let’s say, that the President and his closest advisors are serially obstructing justice, the clear public interest in making sure this type of activity is unearthed trumps any interest the accused officials have in keeping the information secret and such, a reporter who reports these types of leaks should not be compelled to testify.

  13. straightrecord Says:

    rejoining this discussion, even though i am not a lawyer, i do have many decades in the journalism craft. mark must know there are many state shield laws around the country, offering a widely varying degree of protection to the legitimate practice of journalism. i phrase it that way because none of the laws is intended to protect a journalist himself or herself. but even the most generous of the laws, probably california, does not give blanket protection. journalists have never had complete freedom to practice their craft, nor should they. we’ve always been subject to libel laws (granted, the bar is higher for suing a journalist than an ordinary citizen), plagiarism, copyright infringement, etc. we often have to move gingerly in putting our words down. i still contend that a good shield law should protect a journalist at the very least against a prosecutor or another lawyer being allowed to demand a reporter’s unpublished notes or force a reporter to provide unpublished answers to questions. the issue of protecting sources, as has been pointed out, often overlaps other laws (including one, as been mentioned, that even allowed a source to sue a journalist for revealing his identity in a deposition) and there is the federal privacy act, as mentioned. but the entire issue still remains a grey area for journalists themselves, one on which we constantly make individual decisions. if a source’s confidential statement to me turns out to be a lie, i feel he has lost his right to identity protection. the “source” term is overused, but not just by reporters. far too many “sources” claim anonymity when they don’t need it, so we shouldn’t allow them to hide when it isn’t necessary. we also should do a better job of informing sources as to what “off the record,” “background,” “deep background,” and other such terms means because there is a great deal of confusion about them. and we should quit using the terms as frequently as we do and try to do a better job of convincing the source to allow himself to be identified. finally, as many of you know, the identity cloak is used by informers more by people who want to put a positive spin on the news they themselves produce as it is to expose some secret. that’s a long, convoluted response from someone on the other side of the fence, but i hope it contributes to the discourse.

  14. straightrecord Says:

    and to david and his very interesting conundrum construct, i agree with its reasoning. the public official who reveals a state secret should be liable to prosecution while the reporter to whom the secret was revealed should not have to reveal his source. i realize this creates a situation that may not seem fair on the surface, but consider this. the public official has taken an oath and gone through secrurity clearances to receive the information, the reporter has not (allow me to digress a bit back to the issue of journalistic restrictions. a reporter gets access to represent the public in certain places only after his own personal life has been investigated, the degree of the probe depending on the access given. a white house press pass requires a much more thorough background check than say a city-issued press pass, with all levels in between applying varying restrictions).
    most washington journalists i know have seen or heard many state secrets over the years, some of them classified as “top secret.” we all know that most of classified material is given that designation because it is easier to classify it than to determine if it should not be, it is classified only because it would cause embarassment and not because it would harm security, and much of it should not be classified at all. as i say many of us have seen examples of all of the above. as many times as not, the public has benefited or nefarious activity has been exposed by disclosure of state secrets more often than harm has been caused. take the pentagon papers as good done, take the new york times sitting on the bay of pigs invasion as harm done.
    most of us who come into possession of state secrets make our own decision about what should be revealed and what should not. if you have seen any of this stuff, you would know making such a judgment usually is a no-brainer. no respectable journalist i know would out a secret agent, for example (i and my colleagues would not consider robert novak a respectable journalist). sometimes we’ll decide to use classified information, but in such a way to make the point without disclosing details. the downside is that the journalism craft is not being practiced these days at the high level of responsibility i knew during my career and far too many of my peers do not seem to have the ethical standards they should have (see tabloid cable).
    i have not offered solutions, but i hope i have offered some points to be considered in the discourse.

  15. Mark Grannis Says:

    Straightrecord, thanks for these contributions. I think they do you great credit, and I’m disappointed not to have your name on them. But I hope you are saying these things on panels in journalism schools and at professional gatherings. I also hope that, when the lawyers aren’t watching, you and other journalists discuss these issues amongst yourselves with the subtlety and candor that you show here, rather than in the heavy-handed way the media lobbying campaign for S. 2035 has proceeded.

  16. Mark Esswein Says:

    straightrecord raises an interesting point with regard to classified information with …”classified only because it would cause embarassment and not because it would harm security”… Given the rate at which the current administration has classified documents ( and retroactively, no less, ) one might even wonder whose embarassment is being covered.

    So yes, if the scribbler has the evidence that can prove nefarious deeds on the part of the executive, the court should compel. Isn’t that a legitimate check of the judiciary over the executive?

    Lawyers help me out here.

  17. straightrecord Says:

    mark esswein poses an interesting conundrum that reflects the complexity of the shield-law issue. but i some questions about his conclusion. a court order to produce the evidence of nefarious deeds would be a reasonable check by the judiciary over the executive if that order applied to the executive. if it applied to the reporter, it would not offer such a check and would have to be limited. first, presumably the reporter would freely supply any evidence he had that was included his reporting, but may request that he be subpoenaed for it for appearances sake. if not, he should be compelled to supply information cited in his news report. after all, he already has revealed it and his refusal to supply it would protect nothing or nobody. but he should not be asked to produce–and this is where i guess mark grannis, other lawyers and i disagree–anything that was not included in his reporting. i strongly believe that is where the bright line must be drawn. even that is a dangerous area until the legal system can solve the residual fifth-amendment right and the fact that right usually is lost if any questions on the subject is answered. as for the evidence, it rarely is provided by the leaker as a document, for if it is classified, these days each copy would have a certain mark identifiying the recipient. most leaking is either oral or a reporter might be allowed to read it (maybe even upside down) and take notes, or not even allowed to take notes–a dangerous way of doing business. all this suggests there is nothing simple about this issue.
    and to mark grannis, i would suggest i am one of legions of reporters who feel as i do about the practice of journalism. we discuss it among ourselves all the time and have for decades. we also discuss it with lawyer friends and acquaintances, as well as government employees, including schedule c’s, and congressional staffers we cover.
    one of the lawyers representing reporters rights and similar ethics-related issues in washington was a good friend of mine you may have locked horns with–the late and unassuming dick schmidt.
    and if you were or are involved with the dan rather (i assume in his suit challenging his firing by cbs), then you know news anchors are there only to provide a pretty face and almost never do any actual reporting. even before becoming an anchor, in the days when they were reporting, they usually had a producer doing the bulk of the legwork and talking to sources. i happen to believe that cbs had some good information, but lacked the editor with high standards to make sure the information was backed up and nailed down before airing it. insofar as he may have been involved in the editorial decisions, rather must take the blame for sloppiness. i always cringe when broadcast news at any level pleads the privileges, rights, access or other protections allowed the legitimate print medium.
    and as for the lobbying effort for S. 2035 and other similar lobbying efforts (i have watched the best practitioners of the craft in washington for decades), i would suggest one should always see lobbying as something similar to a labor negotiation. if you want to get plus 10 then go into negotiations asking for plus 20 so you have a better chance on compromising eventually on the plus 10 you wanted in the first place. if early demands seem excessive, that’s the way negotiating is practiced in a system of government based on comprise.

  18. Mark Grannis Says:

    On the Esswein Conundrum (I overlook my doubts that we are using “conundrum” correctly), I think we’re missing key facts, but it might be that straightrecord and I agree. To be clear, I could support a shield law that excused reporters from naming confidential sources who disclose “whistleblower” information — that is, information about governmental fraud, waste, abuse, or malfeasance in office, the disclosure of which is protected by the Whistleblower Protection Act. I would in fact see this not as a special privilege for reporters, but rather as another element of protection for whistleblowers, and if this is what the press wants I think it would encounter little or no opposition by reframing its legislative request accordingly. The type of shield I do not support is the type that would protect the actual wrongdoing by government officials, instead of protecting the people who expose the wrongdoing.

    Thus, if the Esswein Conundrum is that Deputy Assistant Undersecretary Smith discovers government wrongdoing, Smith leaks it to reporter Jones, and Jones publishes it, then justice requires protection of Smith and it is entirely defensible to have a shield law that excuses Jones from outing him. But if the Esswein Conundrum is that Smith himself violates the law by passing information to Jones, which Jones publishes, then justice requires punishment of Smith and a shield law that excuses Jones from outing Smith is entirely indefensible; indeed, it is basically a license to obstruct justice. For me, it all depends on whether the press is using anonymity to encourage exposure of government malfeasance, or is instead using anonymity to cover up government malfeasance. I should think that distinction would also be of primary importance to most people who go to journalism school, but I suspect the corporations who employ those people have somewhat less abstract criteria for deciding how broad a shield law should be.

    This focus on the content of the leak and the motives of the leaker highlights another important difference between the privilege journalists want and the attorney-client privilege to which they analogize. Attorneys are not excused from testifying about any old thing they happen to hear, just because they are attorneys. The privilege only applies to conversations an attorney has with a narrow class of people (clients) who are pursuing a particular socially approved purpose (seeking legal advice). An analogous privilege for reporters would similarly look at both participants in the newsgathering conversation to assess whether the leaker was acting for the right purposes.

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