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.

What constitutes ‘fair use’ for mashups?

Scholars and lawyers working with under the aegis of the Communication School at American University have compiled a “Code of Best Practices in Fair Use for Online Video.” That title might lead videographers, amateur film-makers and digital activists to conclude that the PDF will teach them how much copyrighte material they can legally snip and remix without getting sued into the next plane of existence by the ghost of Jack Valenti.

But the blog summary says: 

“This code of best practices does not tell you the limits of fair use rights.”

So what gives? I would guess that the lawyers and academicians who assembled this work are passionate about the importance of fair use, because they say things like:

“Copyright law has several features that permit quotations from copyrighted works without permission or payment, under certain conditions. Fair use is the most important of these features. It has been an important part of copyright law for more than 150 years. Where it applies, fair use is a right, not a mere privilege. In fact, as the Supreme Court has pointed out, fair use keeps copyright from violating the First Amendment. As copyright protects more works for longer periods than ever before, it makes new creation harder. As a result, fair use is more important today than ever before.”

Such strong words practically exhort a person to test the limits of fair use at a time when copyright is being misapplied even by the Associated Press, which ought to be safe-guarding free speech instead of licensing it out in five-word increments. 

But offering legal advice exposes its issuer to liability and culpability because, to quote the old saw, the devil is always in the details. Which remark, I hasten to add, does not mean to injure or defame the reputation of Jack Valenti by insinuating that he is or ever was the devil, or the devil’s agent or assign, or that Jack Valenti might be, even now, sweating in that eternal hot tub down below, with a Margarita in one hand and a babe in the other, as he barks instructions into his Bluetooth telling the Hollywood law firm of  Letz Fukem Butgood to prosecute another batch of college students for illegal downloads.

I suspect that a careful study of this Best Practices guide, and its associated links, will help you understand how other audio-visual creators have made use of this vital principle of fair use without losing their lives, their fortunes,or their sacred honors. Yet.



‘Golden age of media’ a golden shower

Kudos to the Progress and Freedom Foundation for assembling a thought-provoking book of Media Metrics (pdf) that argues “we have more media choice, more media competition, and more media diversity than ever before . . .  (if) . . . there was ever a ‘golden age’ of media in America, we are living in it today.” In a blog summary, authors Adam Thierer and Grant Eskelsen hope that, guided by this impressive compilation of tables and charts, “future debates on this subject will be be guided by facts instead of fanaticism and by evidence instead of emotion . . . hyperbolic rhetoric (and) shameless fear-mongering.”

Which fortunately leaves me free to heap derision and disdain on this bean-counting analysis that reeks of moral relativism like a chain-smoking French deconstructionist whose underarms have never been dishonored by deodorant.

Let me explain this seemingly bipolar view. I truly appreciate that this libertarian think-tank used its financial support from nouveau corporate media to pull together facts on everything from Internet advertising trends to magazine expansion (see niche breakdowns page 77) to the revelation, at least to me, that more than 3,000 free-circulation local papers have a “combined circulation . . . larger than all the daily newspapers in America.”

That seems impressive until you realize those are “shoppers” as we used to call such advertising-only weeklies when I was a small town businessman in Eureka, California, where the Tri-City Weekly was a fine example of that genre. So when the authors of Media Metrics call this a golden age of media, what they really mean is that this is a golden age of advertising. There has never been a better time for national and international brands to advertise goods and services. And that is not a bad thing until you consider that banks are failing, household debt is high, and “the U.S. is experiencing the worst food inflation in 17 years,” as MSNBC reported in April.

So one might fairly ask whether this more-is-better analysis makes sense when getting more media offer more temptation to buy more things with money we don’t have.

I especially enjoyed chapter six on “the natural decline in media localism” in which the authors make two contradictory arguments. First, they say, the “decline of ‘localism’ is much-lamented but quite natural phenomenon as citizens gain access to news and entertainment sources of broader scale and scope.” Translation – people are more interested in Paris Hilton’s life than in their own.

In the event, however, that our logic rejects this rather specious supposition, the authors offer a contradictory fall back — a 2007 University of Missouri report, “The Community Newspaper Study,” which offers statistics about satisfaction with local news coverage. The 2007 report is compares to a 2005 report to assure us that if we do decide to act locally instead of leer globally that we already have satisfactory local news outlets.

But from what little I know of statistics the Missouri report seems to lies somewhere between extraordinary anecdote-gathering and piss-poor statistical sampling.

For instance the report summary says: “In the 2007 survey, 505 interviews were completed with adults who lived in areas whose total population was 25,000 or less in the United States . . . in 2005, 503 interviews were completed with adults who lived in newspaper markets of less than 100,000 people.”

Even assuming that sub-25,000-person communities are the same as the sub-100,000 variety, how do we know that the communities surveyed in each of the two years are equivalent for statistical purposes, so that we can lump all 500 or so interviews together? And what is the margin of confidence on a sample that small?

We aren’t told, but come to think of it who cares! Paris Hilton’s videos are more engaging than the city council meetings I can watch on my local cable provider’s public access channel.  So thank you, Progress and Freedom Foundation, for giving me evidence instead of emotion, and for helping me realize that this is a golden age of media — in fact it is a golden shower raining down on civic-minded Americans from sea to shining sea.  

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.

Producer coops for pork, why not for prose?

How did tiny Denmark become one of the world’s leading exporters of pork products? And why raise that question in a media blog?

To answer to the first question, about 120 years ago Danish farmers created producer cooperatives that combined the best attributes of big and small enterprises. The cooperatively-owned slaughterhouse processed the hogs and sold the product, taking advantage of the economies of scale. The small farm holdings raised hogs that were better bred and tended, and thus presumably of higher quality.

To answer to my second question, the emerging citizen media strike me as being akin to small farms. They may produce well-tended content, unique to some constituency or geographic neighborhood. But they have no hope of penetrating any meaningful markets as standalone operations. I think that a cooperatively-owned central processing plant, to host content, negotiate resale and/or licensing agreements, provide group health insurance, do research and product development and perform other back-office functions, would help the nascent new media coalesce into a meaningful force.

Of course, Americans are not Danes and our individualistic culture, with its inherent fractiousness, no longer lends itself to group effort. I consider this a cultural handicap of modern Americans that compares unfavorably to our barn-raising ancestors. I don’t quite understand the why of it but we must play with the cards we are dealt, to some extent, mini-media in America can attain some part of what the Danish-style coops provide through outfits like Lulu.com or CafePress.com — which coordinate things like book- or cd-on-demand publishing, and enable the creation of online storefronts to sell wares.

I have written till my fingers hurt about the need for media producer cooperatives. I will link to three postings along those lines. But as I  write this morning it occurs to me that I will never be able to cram Americans into the same can as a Danish ham. And maybe the practical way to pursue these dreams would be to look for ways to blend certain aspects of these coop ideas into the Lulu or CafePress type of operations. What would be the business rationale? Thinking out loud I’d say that if a vendor like Lulu or CafePress offered group health care to its serious customers, that would lock them in and create a barrier to entry to competitors.

Here are the prior coop postings should they contain nuggets of interest:




The race to the bottom is over and Rush Limbaugh has won

In 1984, when Rush Limbaugh was finding his voice on radio station KFBK in Sacramento, California, I had several in-laws who were initially charmed by his bombast, though they ceased to be fans after he moved to New York in 1988.

Since then Limbaugh has arguably become the nation’s demagogue in chief. A July 6 cover story in the New York Times Magazine reveals that his contract with Premier Radio Networks earns him about $38 million a year. Limbaugh says:

First and foremost I’m a businessman. My first goal is to attract the largest possible audience so I can charge confiscatory ad rates.

Writer Zev Chafets says Limbaugh has gone deaf and wears a cochlear implant so he can hear callers. Not that he’s there to listen. That’s the audience’s job, as Chafets writes:

Limbaugh’s program that day was, as usual, a virtuoso performance. He took a few calls, but mostly he delivered a series of monologues on political and cultural topics. Limbaugh works extemporaneously. He has no writers or script, just notes and a producer on the line from New York with occasional bits of information. That day, and every day, he produced 10,000 words of fluent, often clever political talk.

Or what passes for political talk in America, I suppose. The wonder is that a man who, as we learn has a private jet and is considering the purchase of an NFL franchise, has apparently dialed in to a wide swath of the American psyche. The best line in the piece was an observation by his friend, Joel Surnow, that a movie of Limbaugh’s life would be “Citizen Kane” meets Howard Stern.


Cyclical plus secular shift clobbers media

Some time back I read an article by MediaPost editor Joe Mandese which postulates, and I think correctly, that the current slump in mass media revenues owes not merely to an economic slowdown but to an accelerating shift away from newspapers and broadcast to online. Economists call these secular and cyclical shifts, respectively, and the combination is like a one-two punch that has mass media reeling. Here’s what I fear — that there is no bounce-back from this slowdown. Unlike past recessions, if it’s time to use that word, mass media revenues will not bounce back of their own accord. Advertisers who try the new, more- targeted and presumably lower-cost online options — the search engines and the social networks — are likely to forever decrease mass media budgets.

Mandese’s piece in MediaPost is not quite so pessimistic but there is a dour note in the observations of the story’s central source, TNS Media Intelligence advertising economist Jonathan Swallen. He says the consumers seem to have closed their checkbooks, at least for now:

There are some things that are different about this slowdown . . . it is consumer-led. The last big turndown that we had in 2001, post-9/11 and the dot-com bust wasn’t so much of a consumer-led slowdown. There were other economic factors. This one feels different. What we’re in right now is a period in which consumers are stressed and strained by rising food prices, rising fuel prices, a crunch on credit, and a feeling that things will get worse before they get better. Without a rise in consumer spending, that [disincentivizes] marketers from ramping up consumer ad spending.

The latter statement is so obviously true it inhibits us from asking the what-if question — what if this is a tipping point beyond and consumers can no longer sustain the growing rate of consumption upon which the economy, and thus advertising, depend?

I’ll leave that a pregnant question for now. 

Oops. Let me add one more comment by Mandese as a reminder for follow-up research. He writes that:

Other advertising economists are expected to weigh in with their predictions soon, including Interpublic analysts Bob Coen and Brian Wieser. Coen, who has served as the ad industry’s chief source for advertising spending estimates for decades, has historically tracked the industry’s growth relative to the growth of the U.S. gross domestic product.

* * *

Meanwhile, in everyday life, I’m pretty darned certain that my PC has been slammed by a virus or spyware that resists both the downloadable and shrink-wrapped anti-virus software to which I have access. I have some contacts in the security community who, while they don’t make house calls, may take a look at my machine. I got a call last week at the office from a woman who described similar symptoms — the infection first presented as a (false) warning from the PC’s security center “You have been infected . . . go here to download . . .” I did not follow that misdirection. The caller did. Her PC, she says, is “fried.” Not a particularly good diagnostic but I understand that she cannot so much as boot up. I have been trying to work around and/or expunge this thing, but am losing the battle. In fact I am blogging today on a Mac so as to avoid the annoyance.