Monday, December 13, 2004

SAFIRE: SUPPORT A FEDERAL SHIELD LAW

Regardless of what you think of William Safire's politics, there can be no doubt, at the end of his legendary career, that he is a true journalist. He gets it.

...Isn't every citizen obliged to give sworn testimony to help the government enforce the law?

The answer is no. The government may not compel a man to testify against his wife, nor doctor against patient, nor priest against penitent, nor lawyer against client. The law has extended this "privilege" to psychologists and social workers, on the theory that society is ill served by erosion of trust within relationships dependent on such trust.

Certainly the public interest in the robust and uninhibited flow of information should continue to protect confidential relations between source and journalist (as more than 30 states now do through "shield" laws).

Here's the rub: No privilege is absolute. Constitutional rights sometimes conflict. Extreme example: Everybody - spouses, doctors, lawyers, clergy, journalists, bartenders - must break any confidence to prevent a murder. We are expected to use common sense in balancing our right to remain silent with our obligation to bear witness.

That good sense is being swept away today by leak-happy prosecutors and activist judges. This trend toward the jailing of journalists for protecting the free flow of news is an abuse-of-power abomination. If higher courts can't control the plumbing fashionable below, it's up to Congress to enact a federal shield law.

Liberals may now be fearful of opposing mindless media hatred, but why are principled conservatives not aroused by imperial judges? The founders ensured freedom of the Fourth Estate as a check against the powers of all three branches of central government. Most states are doing their part. Pass that federal shield law before a judiciary on steroids throws Strike 3. (emphasis added.)

Sunday, December 12, 2004

TV reporter gets six-month home confinement sentence

Flashback: Taricani Statements - Nov. 18, Dec. 1
November 18:

When I became a reporter 30 years ago, I never imagined that I would be put on trial and face the prospect of going to jail simply for doing my job. Today, I was tried and convicted for refusing to identify the confidential source who gave me a videotape showing corruption in City Hall. On Dec. 9, I will be sentenced, possibly to jail.

The government has used its resources and power and the threat of jail to try to coerce me to identify a confidential source. This assault on journalistic freedom exacts a high price by stifling the flow of newsworthy information to reporters and to the public. I wish all of my sources could be on the record, but when people are afraid, a promise of confidentiality may be the only way to get the information to the public, and in some cases, to protect the well-being of the source. I made a promise to my source, which I intend to keep. Although I am willing to go to jail, I think it is wrong that journalists should face this type of threat simply for doing their jobs.
December 12, 2004
The Associated Press

PROVIDENCE, R.I. – A TV reporter who defied a court order to identify the source of a secret FBI videotape will spend the next six months in home confinement, serving a sentence a federal judge says will "mirror as close as possible" prison conditions.

Jim Taricani, 55, was sentenced Thursday, three weeks after he was found guilty of criminal contempt for refusing to say who gave him the FBI tape, part of a federal investigation into municipal corruption in Providence.

U.S. District Judge Ernest Torres told Taricani that he would have sent him to prison had it not been for his fragile medical condition: Taricani had a heart transplant in 1996 and takes medication daily to prevent organ rejection.

Wednesday, December 08, 2004

FLOYD IN THE HIZZOUSE!!!

UPDATE - E+P:

NEW YORK On Tuesday night's "Charlie Rose" show on PBS, in a segment on the Valerie Plame/CIA leak probe, attorney Floyd Abrams said that if Judith Miller and Matt Cooper "have to go to jail it will be a defeat and the world will change....We have a history of not putting reporters in jail, and that is changing."

[Ed: This one's going to the Supremes - I feel bad for Rehmmy, a 4-4 split could be interesting.]

SUPPORT YOUR ELECTED REPRESENTATIVES, THE STATES, AND THE CONSTITUTION - BACK DODD'S FREE SPEECH PROTECTION ACT OF 2004. THE FATE OF WESTERN CIVILIZATION HANGS IN THE BALANCE. THIS IS NOT A TEST.

Reporters Fight in Court Not to Reveal Sources
December 8, 7:16 PM (ET)
By Deborah Charles

WASHINGTON (Reuters) - A lawyer for two journalists subpoenaed to testify before a grand jury asked a federal court on Wednesday to rule that they do not have to disclose their confidential sources in an investigation into the leak of a covert CIA officer's name in the build-up to the Iraq war.

Floyd Abrams, who represents New York Times reporter Judith Miller and Matthew Cooper of Time Magazine, urged a three-judge panel on the federal appeals court to rule that the two do not have to comply with the subpoena.

Abrams said journalists are protected under the First Amendment of the U.S. Constitution, which guarantees freedom of speech and freedom of the press.

A lawyer for the government, James Fleissner, argued that under a 1972 Supreme Court ruling, journalists are not granted absolute First Amendment protection in criminal cases.

Abrams said times had changed in the past 30 years, and noted that most states have some protection for journalists.
--
To support the Free Speech Protection Act of 2004, please send a blank email to cjf2105@columbia.edu.

Friday, December 03, 2004

Think before you write.

The WashPost ran an article today about two Massachusetts soldiers who were killed in Iraq. Their funerals were attended by Sens. Kennedy and Kerry.

But down on the second page, this paragraph jumped out at me:

On Sept. 11, 2001, during the moments before the attacks on the World Trade Center, Gavriel had been on the phone with a friend working in one of the towers, according to the news stories. That made it clear: He would go to Iraq.

On 9/11, he knew he would go to Iraq? Wow. That's even before Bush knew he was going to Iraq.

C'mon guys (read: reporters), think about this stuff before you write it.

Mr. President, will you answer the question?

Salon.com:

Finally, in the absence of answers, the press corps should do a better job of reminding the public of all the outstanding questions from Bush's first term. Aren't some of these questions important enough to keep asking, even if no answer is forthcoming? And isn't it worth reminding our readers and viewers that we have been denied the answers? For instance:

• Who was responsible for the faulty intelligence about Iraq's WMD, and why haven't they been held accountable?
• What has changed about the administration that would give the public the certainty that if we go to war again, it won't be based on faulty intelligence?
• When did Bush become aware of the memos written by White House and Justice Department lawyers sanctioning torture and the circumvention of the Geneva Conventions in certain circumstances? And did he support or reject them?
• Does Bush know who leaked Valerie Plame's identity as a CIA operative? Who did it?

There are many more. And there are also now a growing number of questions about Bush's ambitious but amorphous plans for his second term that should be asked until they are answered. Among them:

• If current workers are allowed to invest some of their Social Security taxes, that amount will have to be made up in some other way, unless the government reduces payments to current or future retirees. So what's it going to be?
• How can the government reduce the deficit if it won't increase taxes and it doesn't reduce spending?
• If the tax code overhaul is to be revenue neutral, and one goal is to reduce the tax rate on savings, what taxes go up?
• If preemptive war against Iraq was justified, what other nations might merit preemptive action?

At this point, the best thing reporters can do is ask questions so simple and direct that Bush's almost inevitable evasion is obvious to everyone. And then they should repeatedly remind their readers and viewers that the questions remain unanswered. Maybe Bush can be prodded and shamed into meeting with the press more often. And maybe White House reporters -- who are, after all, among the best of their profession -- can craft the occasional question that actually prompts the president to reflect upon a decision, recall an event or reaction, give some insight into his judgment, or even spill some beans.

But more realistically, the best outcome we can hope for is that better questions themselves will help the media and the public focus on the vital issues of the day -- so that the president's minimally valuable responses to them can at least appear in well-researched, consequential news reports full of context and facts.

L.A. Times To End National Edition

WashPost::

The Los Angeles Times is killing its printed daily national edition at the end of the year, saying the Internet and other electronic distribution channels have made the paper copy irrelevant.

The Times, owned by Chicago-based Tribune Co., prints the national edition in Baltimore and distributes it in Washington and New York. The Times would not disclose how many copies it sells or whether the edition makes money. Like the paper sold in California, the national edition is a broadsheet, but a pared-down version, focusing mainly on political news and other national stories.


BBC got hosed

Reuters:

Dec 3, 2004 — LONDON (Reuters) - BBC World said on Friday that an interview it ran with a man it identified as a spokesman for Dow Chemical Co, in which he said the U.S. company accepted responsibility for India's Bhopal disaster, was wrong and part of an "elaborate deception."

A spokeswoman for Dow Chemical in Switzerland also confirmed that the report was wrong.

The BBC had earlier twice run an interview with a man it identified as Dow Chemical spokesman Jude Finisterra, who said the company accepted full responsibility for the disaster 20 years ago in the central Indian city of Bhopal.

This would have represented a major policy reversal for Dow Chemical which has said it has no responsibility for the Bhopal disaster.
'

Thursday, December 02, 2004

Free Speech Protection Act of 2004

"Our Founding Fathers recognized then that for a society to remain free, it must also allow for divergent views and opinions to be expressed, and for ideas to be openly exchanged. In many respects, the rights of free speech and a free press protect the government from trampling on the other political and personal liberties all Americans hold so dear.
Freedom of speech and freedom of the press are like the government watchdog that shines a spotlight when other rights are being threatened. Without this, the press becomes an extension of the government and the people know only what the government wants them to know. As Jefferson once commented:
When the press is free and everyone is able to read, all is safe.
Congress cannot afford to stand idly by and allow our sacred First Amendment freedoms to be threatened. Let me be clear. The legislation I submitted to the desk, the Free Speech Protection Act of 2004, is not merely about protecting the press. Instead, this legislation is about consumer protection. It is about openness, debate, the free flow of information and deliberation--the very ideals that the Senate holds so dear."
-- Senator Christopher Dodd (D-CT)

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By Mr. DODD:
S. 3020. A bill to establish protections against compelled disclosure of sources, and news or information, by persons providing services for the news media; to the Committee on the Judiciary.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Free Speech Protection Act of 2004''.
SEC. 2. DEFINITIONS.
In this Act:
(1) COVERED PERSON.--The term ``covered person'' means a person who--
(A) engages in the gathering of news or information; and
(B) has the intent, at the beginning of the process of gathering news or information, to disseminate the news or information to the public.
(2) NEWS OR INFORMATION.--The term ``news or information'' means written, oral, pictorial, photographic, or electronically recorded information or communication concerning local, national, or worldwide events, or other matters.
(3) NEWS MEDIA.--The term ``the news media'' means--
(A) a newspaper;
(B) a magazine;
(C) a journal or other periodical;
(D) radio;
(E) television;
(F) any means of disseminating news or information gathered by press associations, news agencies, or wire services (including dissemination to the news media described in subparagraphs (A) through (E)); or
(G) any printed, photographic, mechanical, or electronic means of disseminating news or information to the public.
SEC. 3. COMPELLED DISCLOSURE PROHIBITED.
(a) IN GENERAL.--Except as provided in section 4, no entity of the judicial, legislative, or executive branch of the Federal Government with the power to issue a subpoena or provide other compulsory process shall compel any covered person who is providing or has provided services for the news media to disclose--
(1) the source of any news or information procured by the person, or any information that would tend to identify the source, while providing services for the news media, whether or not the source has been promised confidentiality; or
(2) any news or information procured by the person, while providing services for the news media, that is not itself communicated in the news media, including any--
(A) notes;
(B) outtakes;
(C) photographs or photographic negatives;
(D) video or sound tapes;
(E) film; or
(F) other data, irrespective of its nature, that is not itself communicated in the news media.
(b) SUPERVISORS, EMPLOYERS, AND PERSONS ASSISTING A COVERED PERSON.--The protection from compelled disclosure described in subsection (a) shall apply to a supervisor, employer, or any person assisting a person covered by subsection (a).
(c) RESULT.--Any news or information obtained in violation of the provisions of this section shall be inadmissible in any action, proceeding, or hearing before any entity of the judicial, legislative, or executive branch of the Federal Government.
SEC. 4. COMPELLED DISCLOSURE PERMITTED.
(a) NEWS OR INFORMATION.--A court may compel disclosure of news or information described in section 3(a)(2) and protected from disclosure under section 3 if the court finds, after providing notice and an opportunity to be heard to the person or entity from whom the news or information is sought, that the party seeking the news or information established by clear and convincing evidence that--
(1) the news or information is critical and necessary to the resolution of a significant legal issue before an entity of the judicial, legislative, or executive branch of the Federal Government that has the power to issue a subpoena;
(2) the news or information could not be obtained by any alternative means; and
(3) there is an overriding public interest in the disclosure.
(b) SOURCE.--A court may not compel disclosure of the source of any news or information described in section 3(a)(1) and protected from disclosure under section 3.
SEC. 5. ACTIVITIES NOT CONSTITUTING A WAIVER.
The publication by the news media, or the dissemination by a person while providing services for the news media, of a source of news or information, or a portion of the news or information, procured in the course of pursuing professional activities shall not constitute a waiver of the protection from compelled disclosure that is described in section 3.
************************
Mr. DODD. Mr. President, I am going to send a copy of this bill to the desk to be printed in the RECORD. It is not going to be referred to any committees in the waning minutes of this 108th Congress, but I will submit it for the RECORD. My plans are to reintroduce this legislation in January when we reconvene for the 109th Congress.
I thought it might be helpful to have this legislation in the RECORD for my colleagues to review. It is called the Free Speech Protection Act of 2004.
[Page: S11647] GPO's PDF
This bill is designed to ensure that the free speech guarantees enshrined in the First to the Constitution will be strong and effective for many generations to come. After all, it is the free flow of news and information to the public on a wide variety of concerns which makes our democracy vibrant and alive.
Indeed, the very design of our democratic institutions is premised in large part upon an informed citizenry that could exercise informed judgments.
As James Madison once observed:
Knowledge will forever govern ignorance: And apeople who mean to be their own Governor, must arm themselves with the power that knowledge gives.
Madison and the other Founders of our great Republic understood full well that the best guarantee of a knowledgeable citizenry is a free press and a public free to speak to the press. The press must be free to report on the human condition, the conduct of public officials, matters of business and corporate governance, as well as the strengths and weaknesses of our society and its institutions.
A free press must also be able to access a broad spectrum of views from a wide variety of sources. Once individuals deliberate over such information, they are able to make more educated decisions. In addition, they can also more effectively and intelligently participate in matters of public concern. To quote Madison once again:
Popular government without popular information or the means of acquiring it is but a prologue to a farce, or a tragedy, or perhaps both.
In fact, one of the hallmarks of a totalitarian government is that the state controls the press and similar sources of public information. Such regimes are characterized by extreme levels of secrecy and a total lack of transparency. The free flow of information to the public is greatly restricted. Criticism of the government could result in imprisonment or even death.
In recent memory, such regimes existed in Nazi Germany, the Soviet Union, and Saddam Hussein's Iraq, where the press was often used as a tool for propaganda. Unfortunately, there are still a number of governments around the globe today that greatly restrict the flow of news and information to their citizens.
The United States, in its formative years, never chose that path. The Founding Fathers of this great Nation of ours knew the value of a free press because they had often been denied it by their colonial rulers. Repressive measures had long been part of English history in this regard, such as the censorship of published materials and a licensing system whereby nothing could get published without the government's consent.
Our Founding Fathers recognized then that for a society to remain free, it must also allow for divergent views and opinions to be expressed, and for ideas to be openly exchanged. In many respects, the rights of free speech and a free press protect the government from trampling on the other political and personal liberties all Americans hold so dear.
Freedom of speech and freedom of the press are like the government watchdog that shines a spotlight when other rights are being threatened. Without
this, the press becomes an extension of the government and the people know only what the government wants them to know. As Jefferson once commented:
When the press is free and everyone is able to read, all is safe.
Congress cannot afford to stand idly by and allow our sacred First Amendment freedoms to be threatened. Let me be clear. The legislation I submitted to the desk, the Free Speech Protection Act of 2004, is not merely about protecting the press. Instead, this legislation is about consumer protection. It is about openness, debate, the free flow of information and deliberation--the very ideals that the Senate holds so dear.
It is also about ensuring that our constituents, the American citizenry, have access to the knowledge and information they need to make educated decisions and fully participate in our democracy.
Yet these freedoms which we hold so dear are not as safe as they have been in other times in the life of our Nation. They have come under attack by the heavy hand of Government in a manner not seen since the height of the Watergate scandal 30 years ago.
The press today is frequently being subpoenaed to appear in Federal court and threatened with fines and/or imprisonment if they refuse to reveal a confidential source to the prosecutor or attorneys involved in the lawsuit. In some instances, the prosecutor or attorneys might also request the reporter's notes, video outtakes, or other unpublished information.
In recent months, the press has come under intense pressure to reveal the identity of their confidential sources, threatening the public's right to know.
In Providence, RI, WJAR-TV reporter Jim Taricani aired an FBI surveillance tape in 2001 that showed an aide to Mayor Vincent ``Buddy'' Cianci accepting a bribe from a local businessman. Taricani broke no law in airing the tape, but a special prosecutor was subsequently brought in to investigate who leaked the information. He refused to identify the source and was convicted of criminal contempt yesterday in Federal court. Taricani now faces 6 months in prison when he is sentenced in December.
Perhaps the most alarming instance in recent months of the growing threat to the sacred right to freedom of speech in America is the case of Judith Miller of the New York Times. Last month, a Federal judge held Miller in contempt of court for refusing to name her sources to prosecutors investigating the disclosure to syndicated columnist Robert Novak and to other journalists of Valerie Plame's identity as a covert CIA agent. Plame's husband, former Ambassador Joseph Wilson, IV, had in a New York Times editorial criticized the Bush administration for claiming that Iraq had tried to buy uranium from Niger.
Unidentified senior administration officials revealed Plame's identity to Robert Novak and other Washington area journalists, allegedly as an act of revenge for Wilson speaking out against President Bush's rationale for invading Iraq.
Mr. Novak then published Plame's identity in a July 2003 column, which prompted an investigation by the Justice Department and the subpoenaing of several journalists before a Federal grand jury, including Judith Miller, Tim Russert of NBC's ``Meet the Press,'' Walter Pincus and Glen Kessler of the Washington Post, and Time magazine reporter Matthew Cooper.
Some of these reporters have talked to the prosecutors after the alleged Government sources signed waivers releasing the journalists from any pledge of confidentiality. New York Times reporter Judith Miller, however, has refused to testify, even under the limited terms of the waiver. As a result, she is being held in contempt of court and could face up to 18 months in jail unless she agrees to testify.
What is so surprising about this case is that Judith Miller never even published an article in the New York Times, or any other newspaper or magazine for that matter, about Valerie Plame. The mere fact that Miller contemplated writing such an article and had conducted interviews for it was enough for the judge to hold her in contempt of court for refusing to name sources.
Currently, 31 States and the District of Columbia have enacted protections for gatherers and disseminators of news and information. They include red States, blue States, Alabama, North Carolina, and Montana, for example.
Why then is there a need for a Federal statute in this area? A strong and uniformed Federal law on shielding would provide uniformity and consistency to the patchwork of inconsistent court decisions and State statutes currently in place.
In many instances, whether the disclosure will be compelled and how much information will be disclosed depends upon the particular State in which the journalist is pursuing a story when he or she is subpoenaed. The different potential outcomes affect reporters' practices, the flow of information, the articles written or not written, in various news media. It ultimately impacts the public's ability to learn about matters of interest and importance as well.
The protections that these laws and court rulings provide vary widely in detail and in scope. For example, some States grant nearly complete protection for sources and information, while
[Page: S11648] GPO's PDF
others provide little or none. In addition, the protections may differ in their applicability to criminal and/or civil proceedings.
In the Federal court system, for instance, most have interpreted Branzburg, a 1972 United States Supreme Court decision, to provide at least qualified news gathering protection--that is, a protection that can be overcome in certain circumstances. A few Federal courts, however, such as the Seventh Circuit, have rejected such protection, or have limited it only to when the subpoenas are being used to harass the press.
For those reasons, I think it is quite clear that a national standard would protect gatherers and disseminators of information from the varying State statutes and their interpretations by State courts. This goal is exactly what the Free Speech Protection Act of 2004 would achieve.
Under the legislation, the protection against compelled disclosure for sources would be absolute. The protection against compelled disclosure of news and information, however, is qualified. That is, an individual involved in gathering news would be required to reveal their unpublished material only under certain circumstances. The legislation requires three criteria to be met before such news or information can be disclosed.
First, the person seeking the news or information must prove by clear and convincing evidence that the news or information is critical or necessary to significant legal issues before a judicial, legislative, or administrative body that has the power to issue a subpoena.
Secondly, the news or information could not be obtained by alternative means. Finally, there is an overriding public interest in the disclosure that must exist.
The legislation I am introducing this evening is a work in progress. Obviously, in the coming weeks I intend to further refine it, and in the 109th Congress to seek out my colleagues' advice and counsel on how we might proceed. I am nevertheless introducing this bill in the closing hours of this Congress because I believe the Senate discussion of this matter is urgent. The public's right to know is under attack. When that happens, all Americans suffer since they are deprived of knowledge and information which affects their lives.
There are countless examples of information that we have received because there have been confidential sources who have come forward. Certainly, we can go back to Watergate, Whitewater, or Iran-Contra, Abu Ghirab--the prison scandal in Iraq--Enron, WorldCom, corporate governance issues, the list is almost endless. Had it not been for confidential sources coming forward and sharing information with a free press that would then share that with the public, if we had to rely exclusively on government press releases or press conferences, then we might never have learned anything about some of these issues which have been so vitally important to make our Government and our Nation stronger.
I urge my colleagues to take a look at this proposal and urge them to consider it when we return in January. I will reintroduce it again and urge them to support it.
I ask unanimous consent that the text of the bill be printed in the RECORD.
************************
PRESS RELEASE
November 19, 2004
Washington, DC - In response to recent reports in which the press has come under intense pressure to reveal the identity of their confidential sources, Senator Dodd today introduced federal legislation to protect individuals and organizations involved in gathering and disseminating news from being hauled into federal court and forced to disclose their sources or other unpublished information. The Free Speech Protection Act of 2004 would establish a strong and uniform federal reporters' shield law modeled after statutes currently in place in thirty-one states and the District of Columbia.
"This legislation is fundamentally about good government and the free and unfettered flow of information to the public," said Dodd. "The American people deserve access to a wide array of views so that they can make informed decisions and effectively participate in matters of public concern. When the public's right to know is threatened, and when the rights of free speech and free press are at risk, all of the other liberties we hold dear are endangered. The legislation that I am introducing today will protect these rights, and ensure that the government remains open and accountable to its citizens."
The proposed legislation creates an absolute protection against compelled disclosure for sources, regardless of whether or not the source was promised confidentiality. The protection against compelled disclosure of news and information, however, is qualified - that is, an individual involved in gathering news would be required to reveal their unpublished material only under certain circumstances.
There is currently a patchwork of inconsistent court decisions and state statutes that provide protections for individuals and organizations that gather and disseminate news and information. The protections that these laws and court rulings provide vary widely in detail and scope. The national standard enshrined in The Free Speech Protection Act of 2004 would alleviate many of these concerns.
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