Category Archives: Media Law

Jail this reporter, save the First Amendment

It’s time for William Gertz, a member of the Washington, D.C., press corps, to make a small personal sacrifice to improve the ethics of newspaper journalism. He must go to jail. He must go directly to jail and he must acknowledge that by hiding behind the Fifth Amendment in a recent court hearing he has wounded the First Amendment, the foundation upon which all freedoms — not just journalistic privilege — depends.

Here’s the scoop.

Mr. Gertz writes about national security for the Washington Times, Fox News and other news outlets. Lately he has been covering industrial and political espionage from Communist China. As an American reporter who has studied the Chinese language I echo his concerns. But Mr. Gertz has used the wrong methods to cover the right issue. As news articles reveal, he is alleged to have received stolen intellectual property when he quoted anonymous leakers involved in a federal grand jury investigation. It is crime for anyone connected with a federal grand jury to reveal anything about its proceedings. This to prevent the Grand Jury from being turned into a witch-hunt and to protect those innocently accused from having their names dragged through the mud.

To be perfectly frank there are no innocents in this case. In fact the person who wants Mr. Gertz to name his anonymous Grand Jury source is convicted spy Tai Wang Mak. Mak was recently sentenced to 24 years in prison after being found guilty. Now this, ahem, dirtbag is demanding that the judiciary investigate why a supposedly-secret legal process leaks like a political campaign. Material this rich could be a Hollywood movie!

But here’s an unfunny fact: in the United States even dirtbags have rights and even crime-fighters must follow the rules. Indeed, one of the best precedents regarding the rights of criminals was set by Sheriff Andy Griffith of Mayberry, whose integrity and home-spun wisdom made his 1960s TV series so enormously popular.

Below I cite a few lines from a show that aired on October 30, 1967, in which Andy scolds his son, Opie (played by actor-turned-producer Ron Howard) for secretly recording a suspect talking with his lawyer. We join the action as Andy takes away the tape recorder after telling Opie he can’t listen to this illegally-obtained information.

  • Opie: Pa, you’re erasing the tape.
  • Andy: That’s what I mean to do. You bugged a conversation between a lawyer and his client. Now that’s violating one of the most sacred rights of privilege.
  • Opie: But, Pa!
  • Andy: No buts.
  • Opie: But if it it helps the law . . .
  • Andy: Opie, the law can’t use this kind of help because whether a man is guilty or not we have to find that out by due process of law.
  • (Here is a fair use copy of the clip so you can check my transcription: andy_griffith-1)

Now Andy and Opie weren’t dealing with national security. And it may be that people accused of crimes against the nation-state do not or should not have the same rights as the ordinary thugs who might rob, rape or kill Americans.

Mr. Gertz naturally has his own views of this GrandJuryGate. They are laid out in  an affidavit explaining why he should not have to reveal who whispers things in his ear. He calls himself an investigative journalist, which is like the reporter’s equivalent of a SWAT team.

But correct me if I am wrong but there the just five elements to journalism — who, what, when, where and why. If Mr. Gertz leaves out the “who” than he he does just 80 percent of the job, not the 110 percent we’d expect from an investigative reporter. Even giving him credit for 80 percent is generous. Journalists deserve a failing grade when they use anonymous sources because they deprive Americans of the most important tool for evaluating any statement — who said it?

On the other hand, let’s not make too much out of the fact that when Mr. Gertz was hauled into court recently — at the insistence of the dirtbag’s lawyers — he pled the Fifth. The Constitution gives all American, even reporters, the right to avoid self-incrimination. I would no more cast aspersions on Mr. Gertz for invoking that right than I would fault those who were called before the House UnAmerican Activities Committee during the late 1940s and early 1950s for refusing to incriminate themselves when asked whether they were communists or fellow travelers. 

But Mr. Gertz has created an ambiguous situation that reflects badly on professional journalism. For one thing his refusal to back up his work could make people wonder whether he is like  Jayson Blair, the lying liar who wrote fiction, not journalism, for the New York Times.

Furthermore, Mr. Gertz’s posture in this case suggests an “ends justify the means” approach more consistent with communism than with the American values of Andy of Mayberry.

 I do not know whether Mr. Gertz makes stuff up and I rather doubt that he is a communist, but to remove any ambiguity he should march back into court and say: Your Honor, breaking the story of Chinese espionage and my keeping my word are both so important that I insist on being jailed. And than he should fold his arms in stoic silence. Otherwise, people might think him a coward and a liar who expects the Justice Department and the judiciary to bend the law to aid his gossip-mongering.

Two reasons to oppose the so-called shield

The Senate may be nearing a vote on the Free Flow of Information Act of 2007, which has already cleared the House of Representatives. This bill, with its Orwellian title, is ostensibly designed to “shield” reporters from having to disclose the identity of anonymous sources when hauled into court by federal prosecutors. It is purportedly similar to shield laws in some 30 states.

But this is not a shield. It yet another dirty trick on democracy from the same Senate that stripped Americans of the right of habeus corpus, and awarded telecommunications companies retroactive immunity for illegal domestic spying. Here are two quick reasons why journalists, bloggers and engaged citizens should oppose this Trojan Horse.

1. The word shield appears no where in the bill. Put the text into Word and do a search to satisfy yourself. Then read the law’s summary statement — the legislative equivalent to a truth in advertising requirement — which says that its intent is “to maintain the free flow of information . . . by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media.” By its own admission this bill tells federal prosecutors when they can throw reporters into jail. How does that help?

2. This bill would allow corporations to jail journalists who reveal trade secrets. This is an astonishing gift to Corporate America that would squelch environmental, consumer safety and other forms of investigative reporting against corporate as opposed to government power. It is an entirely new power for corporations that works against journalists and the notion of public disclosure. Trade secret law allows corporations to protect manufacturing techniques and other processes from disclosure to competing firms. Current federal law allows companies to file federal charges against its own employees — some of whom must obviously know the secret — if they are caught revealing the secret to a competitor. The formula for Coke is a well-known example. Now say a source inside Coca-Cola told a reporter that the firm was putting cocaine back into the drink. That would be newsworthy. But a careful reading of the convoluted language of Section 2 (Compelled Disclosure from Covered Persons), Section 3, subsection C(i), reveals that a federal court may compel the reporter “to identify a person who has disclosed a trade secret”. So the reporter would have to snitch on the corporate employee who disclosed a trade secret because their conscience told them that the industrial process, defined by the corporation, was wrong or dangerous!

So let’s say you support the notion that there should be a federal shield law. And you realize that this bill is seriously flawed. What do you do? Thank the legislators who support your intent, but do not seek passage of this particular bill. Wait for the next Congress and go through the act to expunge these Big Brother provisions.

Kentucky governor’s blog ban lifted

A year ago, in a fit of political petulance, former Kentucky Governor Ernie Fletcher ordered state websites to block access to certain political blogs after Mark Nickolas, author of, criticized Fletcher in remarks reported in the New York Times.

Last week the administration of new Kentucky Governor Steve Breshear settled the case by agreeing to stop the discriminatory blockage. Read more about the case at Public Citizen (about) which, together with Louisville attorney Jennifer Moore, represented the banned blogger.

WordGate — AP says 4 free, pay at five!

My posting yesterday naively assumed that it would be “fair use” to quote at least a 75-word chunk of an Associated Press article, or other any other copyrighted work, because that was what I recall from various journalism classes.

Now science fiction writer Nielsen Hayden proves me wrong by 71 words. He reveals that AP allows just four free words and shows the price list that starts the charges at $12.50 for five words.

Cory Doctorow, another science fiction author who writes for the influential blog BoingBoing, found further reason to fault AP by plucking the following clause out of the AP’s per-word license. He writes:

If you pay to quote the AP, but you offend the AP in so doing, the AP “reserves the right to terminate this Agreement at any time if Publisher or its agents finds Your use of the licensed Content to be offensive and/or damaging to Publisher’s reputation.”

Amy Gahran, a commentator for the Poynter Institute, put the controvery into context in a post whose titled answers its own question: “AP versus Bloggers: Hurting journalism?

What happens when bloggers realize that AP and other corporate media back a so-called shield law that would offer some protection to paid journalists but exclude bloggers.

Newspapers, blogs converge and conflict

To a considerable extent blogs have fed off mainstream media, repeating and commenting, supplementing and contradicting, but more often than not using some news article as their starting point. Now two developments, noticed by contributors to this blog, show how professional and citizen media groups are trying to coexist.

Der Cuz noticed recently that bloggers who want to develop their own stories and do their own reporting are turning to workshops organized by the Society for Professional Journalists. An Associated Press article carried by Wired News says:

About a dozen would-be reporters navigated the basics of journalism at a recent training offered by the Society of Professional Journalists in Chicago. The group plans similar seminars this month in Greensboro, N.C., and Los Angeles.

One lesson taught at such workshops has been how to avoid defamation — saying untruthful things that would injure an ordinary person’s reputation (public figures have to take more abuse under the law). The article quotes Robert Cox president of the Media Bloggers Association who says:

more than 100 judgments valued at $17 million have been handed down against bloggers over the last three years – about 60 percent for defamation, 25 percent for copyright infringement and 10 percent involving privacy.

In a related item, Charlotte (FedsHallofShame) Yee noticed a New York Times story about the Associated Press meeting with the Media Bloggers Association to discuss the concept of fair use. I hope I get this right because as a card-carrying journalist I should know that there is a legal threshold for how many words one can cite of a copyrighted work, without specific permission. I think the word count is in the 75 to 125 word range. Excerpts must be clearly identified (as by the indentations used above). It is legal to carry such an identified excerpt and link to the full article. But many bloggers extract and repost the entire text. That is neither fair use nor necessary, in my opinion, to make one’s point.

I notice that the Media Bloggers Association says it “will be opening up registration for membership starting in Summer 2008” and offering a “media liability insurance product for bloggers as well as a new membership policy that requires all members to complete a 45 minute online training course.”

I am guessing here that Media Bloggers wants to credential and professionalize citizen media. I’ll look into that effort more as time permits. For now, bloggers worried about legal exposure to defamation suits should look into an umbrella insurance policy, as offered by standard insurers. These provide coverage against libel, which is a defamation that is published or broadcast. But I have no idea of the exclusions and will be eager to see if Media Bloggers can get a better deal.

3 Senators plus Obama rip media mergers

media mergers

Merging Media, a collage by Douglas Millison

Here’s a story that Corporate Media would rather you didn’t read, hear or see. Three U.S. senators have asked the General Accountability Office, the research arm of Congress, to investigate how media mergers affect public discourse.

The letter from Democrator senators Dorgan, Leahy and Kohl is in reaction to a decision by the five-member Federal Commission which voted 3-2 in December to allow media companies to own television stations and newspapers in the same town. Until now federal rules designed to promote open access to “the public airwaves” have limited so-called cross-ownership of broadcast media by print news empires.

The FCC tried to lift the same rule in 2003 but its decision was reversed by a series of congressional and finally court actions. Now Corporate Media is back. It has convinced the FCC that competition from the Internet puts plenty of voices into the public domain. The FCC majority has accepted the Corporate Media argument that merging print and broadcast is the best way to protect the news-gathering muscle that is being lost as newspapers lays off staff to compensate for declining advertising revenues.

Presidential candidate Barak Obama criticized media consolidation in response to a question at a campaign stop in Oregon last week — but I only learned of his unreported remarks by finding a letter critical of the media blackout on the topic.

Actually blackout is the wrong term. I have reported on this. Now so do you. So has MediaPost, Broadcast & Cable, FMQB, TVTechnology and other trade publications aimed at media folks.

It’s just that nobody has told the public.

Senate to Big Media: don’t touch that dial reports that the U.S. Senate voted Thursday to overturn a Federal Communications Commission decision that would let media companies own newspapers and television station in the same cities. The FCC decided to lift the so-called cross ownership rules in December to permit further consolidation on the argument that old media needed to get bigger to fight off the Internet — as clearly worked for the dinosaurs.

The House has yet to act on its version of the resolution and the White House has threatened a veto, Free Press says. So the FCC action allowing greater media consolidation is still on track and the burden is on opponents to derail their administrative edict.

This battle is a repeat of one fought in 2003 when the FCC previously voted to relax cross ownership rules. According to Wikipedia:

The decision by the FCC was overturned by the U.S. Third Circuit Court of Appeals in the decision Prometheus Radio Project v. FCC in June, 2004. The Majority ruled 2-1 against the FCC and ordered the Commission to reconfigure how it justified raising ownership limits. The Supreme Court later turned down an appeal, so the ruling stands.[5]

Last December the FCC again voted to lift the cross ownership rules, setting off the process now underway. FreePress concluded its report on Thursday’s Senate vote saying “At this watershed moment, public outrage against Big Media has reached a breaking point.”

We shall see.