Jailing Journalists

By TChris, Section Civil Liberties
Posted on Sat Dec 02, 2006 at 07:19:46 PM EST
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Journalists Lance Williams and Mark Fainaru-Wada reported some of the testimony leaked from a grand jury investigation into the use of steroids by professional athletes. As TalkLeft noted here, the reporters adhered to their promise of confidentiality when prosecutors asked them to reveal their source, and again when a judge ordered them to answer. The judge held them in contempt.

In a brief filed yesterday, the San Francisco Chronicle argued in favor of a reporter's privilege:

"Confidentiality is essential for the reporters to sustain the relationships they need with sources and to obtain sensitive information from them," Jonathan Donnellan, a lawyer for the newspaper and reporters, said in the court filing. "Without it, the press cannot effectively serve the public by keeping it informed."

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Jailing Journalists | 14 comments (14 topical)

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Ah, well (none / 0) (#1)
by Che's Lounge on Sat Dec 02, 2006 at 08:25:44 PM EST

I guess critical thinking is out of the question here, as in no one is in danger out there somewhere...never mind forget it sorry I brought it up...

Are their limitations on use of contempt? (none / 0) (#2)
by JSN on Sat Dec 02, 2006 at 09:21:50 PM EST

My impression is that a judge has broad discretion in the use of contempt. I hate to talk about limiting judicial discretion but in some of the cases involving reporters the time spent in jail appears to be excessive.

If it is a case of trying to outstubborn a judge I can see how that can happen. I think the judges are overly submissive to the prosecutors in such cases.

Not really. (none / 0) (#4)
by Gabriel Malor on Sat Dec 02, 2006 at 11:04:33 PM EST

The purpose of such a broad contempt power is to ensure that courts are not ignored. A person facing a charge of contempt has really only one protection: prove that the alleged contempt did not occur.

If he cannot do that (for example, because he continues to disobey a court order) his only recourse is to obey. In cases like this the sanction can continue until the involved parties comply with the court's order.

Theoretically, where such compliance never comes, the sanction could continue indefinitely.

As far as journalistic privilege is concerned, the privilege exists to protect lawful confidential sources. Unlawful communications (like leaking grand jury deliberations or classified information) are not protected. Nor should journalistic privilege be used as a shield for criminal behavior.


Why not a fine? (none / 0) (#5)
by JSN on Sun Dec 03, 2006 at 07:17:31 AM EST

I don't have any problem with a judge fining the news media at the rate of $10,000 per day. In fact it probably would work better than locking up a reporter in getting the material the prosecutor needs.


Two way street (none / 0) (#6)
by Edger on Sun Dec 03, 2006 at 07:53:18 AM EST

Nor should contempt of court be used as a shield for criminal behavior by jailing journalists who protect sources leaking classified information outing criminal government officials or programs.

Nor should such leaking be labelled a crime. It is a service to the larger society.


A crime is a crime. (1.00 / 1) (#9)
by Gabriel Malor on Sun Dec 03, 2006 at 01:27:30 PM EST

Leaking classified information is a crime. It should be prevented when possible and punished when it occurs. Personal support for leaks of classified information do not justify setting aside the law. This should be obvious for many reasons, the most important of which is it sets a terrible precedent.

Should they feel that their employer is engaging in criminal behavior, federal employees (or really any employees) can avail themselves of the numerous federal and state whistleblower statutes. Failure to use these established processes by going straight to the media is a crime in itself (in the cases of classified information or grand jury deliberations), regardless of the criminal conduct of the employer. And, of course, two "wrongs" do not make a "right."

The very existence of whistleblower statutes negates the need to extend journalistic privilege to illegal communications. In fact, the recent support for such illegal activities (paradoxically under the claim that they are a service to society) makes public disclosures of legal government programs more likely. (See, for example, the leak of the Treasury Department program montoring terrorist finances.)

Allowing an exception for "service to the larger society" is problematic for several reasons. First, the leak is unlikely to to be in the best position to determine the legality of a government program. The the financial monitoring program was legal and yet it was leaked anyway.

Second, the leak may be motivated for reasons less admirable than service to society. Many leakers act as a way of settling a score. Others act simply because it makes them feel special to be able to share secret information.

Third, it is difficult to say just what "service to a larger society" is. Who will decide when Edger's service exception shall apply? Well, probably the courts (following legislative action to create such an exception, of course). Which brings us right back to where we started.

In sum, current law should be applied. Journalistic privilege should not be extended to illegal communications. Employees wishing to blow the whistle on the illegal acts of their employers should make use of existing laws to do so and refrain from illegal acts themselves.


In sum, (none / 0) (#10)
by Edger on Sun Dec 03, 2006 at 01:41:48 PM EST

current law should be changed, and should include criminal sanction, or at least mandatory psychiatric treatment, for those who would try in vain to equate legal with right or moral.


leaking classified information is a crime ... (none / 0) (#12)
by Sailor on Sun Dec 03, 2006 at 04:44:14 PM EST

... publishing it isn't. See "Pentagon Papers."

The the financial monitoring program was legal and yet it was leaked anyway.

No, it wasn't. Bush can't just decide to tap phones/transactions throughout the world because he says so. He can't tap UN conversations because he says so. He can't tap Americans' phones/internet comms just because he says so.

We have a constitution and laws that provide checks and balances on all citizens, including the president.


: I never said otherwise. (none / 0) (#13)
by Gabriel Malor on Sun Dec 03, 2006 at 05:16:12 PM EST

Sailor, I believe you are noting that neither the NY Times nor the Washington Post nor the reporters involved should be criminally prosecuted for receiving and publishing classified infomation. It should be noted that they haven't been, nor have I argued that they should be here.
I'm saying that leakers face criminal prosecution and that their illegal communications are not protected by journalistic privilege. The journalists in the case that led to this post will be jailed for impeding the discovery efforts of a grand jury looking for the leakers of information related to Barry Bond's grand jury. They are not being jailed because they themselves are under investigation. (It should also be mentioned that, pace Jeralyn, they haven't in fact been jailed; they are free pending resolution of their case.)
They are standing in the way of a court's lawful orders and will be held in contempt of court until they comply. Journalistic privilege only extends to lawful communications. Grand jury hearings are secret; a person who leaks information or documents from such a hearing is committing a crime. Therefore, journalistic privilege does not extend to the identities of the leakers in this case. These reporters hold the keys to their own cells.
As far as the financial monitoring program set up by the Treasury Department, it was legal and effective.
I'm not sure whether to be surprised or not that you do not know the difference between this program and the NSA wiretapping program. Moreover, as a matter of practical advice, I would encourage you to wait until the litigation of the NSA wiretapping is final before declaring it illegal.

: Sailor (none / 0) (#14)
by Edger on Sun Dec 03, 2006 at 06:36:02 PM EST

You've heard the song One Trick Pony by Paul Simon before? ;-)

See how he dances
See how he loops from side to side
See how he prances
The way his hooves just seem to glide
Hes just a one trick pony (thats all he is)
But he turns that trick with pride

If it is a crime why use contempt? (none / 0) (#8)
by JSN on Sun Dec 03, 2006 at 12:53:38 PM EST

The reporter could be held as a material witness or charged as an accessory to the crime.


totally (none / 0) (#3)
by scarshapedstar on Sat Dec 02, 2006 at 10:24:33 PM EST

Gee, can you imagine how bad off we'd be without the steady stream of anonymously sourced lies over the past six years? Thank god for "access journalism."

Don't forget Bilal (none / 0) (#7)
by Bob In Pacifica on Sun Dec 03, 2006 at 12:03:53 PM EST

The AP photographer Bilal Hussein has been jailed by the U.S. forces since last spring for, well, he hasn't been charged with anything.

The two SF Chron reporters have published grand jury information that was allegedly leaked to them. The leak is a violation of law, so whether or not you agree with it at least there's some basis for it. Hussein is a journalist too.

Not to mention the approximately ten thousand non-journalists locked up without the slightest due process.

jailing journalists (none / 0) (#11)
by diogenes on Sun Dec 03, 2006 at 03:47:40 PM EST

Oh Jeralyn, isn't here a national interest in maintaining confidentiality of grand jury testimony so that the grand jury process can proceed with people free to speak freely, or do you support putting grand jury proceedings in the public domain?