Judges and journalists

July 05, 2005|By Jane E. Kirtley

THE FIRST AMENDMENT to the Constitution guarantees "freedom of the press" - whatever that means. For more than 200 years, the American people have relied on the courts to figure it out.

The mainstream media, traditionally a discontented and demanding bunch of malcontents, repeatedly challenged the courts to define the parameters of the "free press" clause in the broadest possible terms. And whether the issue was prohibiting direct censorship by the government, granting access to government documents and proceedings or recognizing the right of journalists to make mistakes in reporting on matters of public concern without being reduced to bankruptcy by lawsuits brought by unhappy officials, the media have clamored for greater and greater protection. The courts, for the most part, have adopted the media's arguments and ruled in their favor.

Look at the Supreme Court's opinions for the past 30 years and you will see an affection, even a reverence, for a rambunctious, contentious press. As Chief Justice Warren E. Burger dryly observed in an opinion he wrote in 1974, "A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated."

Given that journalists, especially those who cover the justice system, frequently report things that drive judges crazy, it is amazing that the courts have been so supportive for so long.

But now the bubble may have burst.

The controversy over whether reporters should be compelled to reveal confidential sources in government investigations or face the prospect of jail is symptomatic of a dramatic change in the judiciary's perception of the role of the news media in contemporary society. What was once seen as a necessity - or at least as a necessary evil - is now an annoyance, at best, and an obstruction to doing justice, at worst.

Although the Supreme Court never explicitly stated that journalists have a constitutional right to refuse to testify before grand juries, over the years, the vast majority of state and federal courts crafted some kind of a privilege for them. It was grounded in the conviction that what might appear to be a perk for the press was really a benefit for the public, guaranteeing a disinterested conduit for information that bypassed the official government line and delivered the truth, without fear or favor.

But nowadays, news organizations are frustrated by increasingly secretive governments at all levels that ignore or rewrite open records laws in the name of security or privacy, stymieing meaningful investigative reporting. And too often, readers and viewers seem to want something besides independence from their news sources anyway. They don't want to be challenged. They want to see their own biases reinforced, and are quick to cry "foul" when that doesn't happen.

Some in the news media, desperately jockeying for ratings and circulation while competing to be heard over the cacophony of opinionated talk-radio hosts and bloggers, seem only too happy to oblige.

Or they may get sucked into the desperate game of demonstrating their "objectivity" by giving equal time and space to the exponents of one extreme or the other, or worse, allowing themselves to be used by unidentified partisan operatives to advance some undisclosed agenda.

The result is that the media are perceived by the courts as just another special interest group, pursuing an elusive bottom line while abandoning the time-tested role of sifting through all the chatter and providing the public with context and perspective, which is what earned the press credibility and respect in the first place.

Should we be surprised, then, when Chief Judge Ernest C. Torres of the U.S. District Court in Rhode Island declared that an individual reporter is "ill-equipped" to decide whether a source is entitled to anonymity? Or when Judge Richard A. Posner of the 7th U.S. Circuit Court said he couldn't see why special rules should apply to people who have been asked to reveal confidential sources just because they call themselves journalists? Or when Judge David B. Sentelle of the U.S. District Court in Washington, D.C., asked why a testimonial privilege, if one exists, shouldn't apply to "the stereotypical blogger sitting in his pajamas"?

Who do these people think they are, anyway? Something special?

Well, yes. Judges and journalists are both pretty special, and they have more in common than either might think. In their own ways, both seek the truth, and believe their respective ethical codes are important. Both are under siege from assaults from a hectoring public. And both are essential to a free society.

Without the judiciary, the press cannot succeed. And without the press, neither can our democracy.

Jane E. Kirtley is a professor and director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota School of Journalism and Mass Communication.

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