Why seizing journalists’ records is the last option, not the first

The latest revelations about the Obama Administration overstepping its moral authority, if not entirely its legal one, in dealing with enemies both real and perceived have left me melancholy.  At best.  While I am buoyed to see that the concept of using the IRS as a blunt instrument  to punish one’s political opponents seems to have won near-unanimous disapproval, the idea that the government shouldn’t be investigating reporters seems not to be getting quite so much support, at least not outside of journalism.

This government is out of bounds—and out of its mind—if it believes that treating journalists as suspected criminals is legally or morally the right way to go.  A government led by a former professor of constitutional law should know better, even if that government has prosecuted more alleged leakers than any previous one.  The things we’re learning about, or which have been alleged, in just a matter of a few days, are stupefying: not just secretly seizing reporters’ phone records and examining their emails, but treating the reporter as though he were a criminal suspect and investigating his associates—even looking at the reporter’s parents’ phone records!

(Look here for links to a number of good stories, editorials and op/eds on government overreach of authority, the attack on civil liberties, and uncomplimentary comparisons to the administrations of George W. Bush and Richard Nixon.  Look here for a first-hand account of the “Kafkaesque” experience of a reporter who had his phone records secretly seized by two government agencies more than 20 years ago.)

Government has a right to protect its secrets; and yes, I think there are circumstances in which government should properly keep information from general distribution.  But unless the information is (1) critical to preserving public safety and security and (2) cannot be obtained in any other way, the government should not be allowed to try to compel journalists to turn over unpublished research or provide testimony or rat out their associates, because that turns those reporters into de facto government investigators and will make people with stories to leak and asses to protect choose their asses over the story. Seizing journalists’ records or compelling testimony is the last option, not the first one, and it’s up a court to decide that, on a case by case basis.

I don’t think journalists have a legal “right” to protect sources; others disagree.  I think they must protect sources if they hope to be effective at their job, but I don’t think the law shields them from any and every effort by the government to uncover information.  (Unless there’s a shield law.)  And I think journalists should be prepared to pay the price under law when they choose to protect their sources, as a good journalist should, while simultaneously refusing to comply with a lawful court order, as a good citizen should.

Yes, Sarah Palin, it’s possible to be a good journalist and a good citizen.  All good citizens are not good journalists, but all good journalists are good citizens when they fulfill a critical role in the functioning of a free society: to tell citizens those things that people in power don’t want us to know; to inform us of what is being done in our name and on our behalf.

I’m not making a case for the purveyors of “news you can use”—things like consumer news, what’s trending on social media, breathless reports on developments on a TV network’s prime time entertainment program as if it was the explosion of the Hindenburg (yes, I’m talking to you, KTRK-TV in Houston); that’s the sissified bullshit kind of “news” we get from outlets that sold their souls when they bought the line of crap peddled by non-journalist consultants whose only real goal is increased profitability.  (I’m not opposed to profit, by the way—I’d like to have been better at it myself—but I am opposed to those organizations for which profit is the only or primary reason for being, and to the people who see journalism as just another product to sell like cook pans or bicycles or bird seed.)

I mean to make the case for the journalism that is there to confront those in power, one citizen to another, and to tell the rest of us what’s going on with the people we’ve authorized to spend our money and operate our governments, from Washington, D.C. to the state capitols and from counties and cities to utility districts and homeowner’s associations.  I mean the journalism that is envisioned in the First Amendment to the U.S. Constitution when it guarantees us the right to a free press right alongside the freedom of religion and freedom of speech and freedom of peaceable assembly and redress of grievances.

How well do American journalists do in living up to that standard?  Each according to his talents, like the rest of us.  The ones Don Henley sang about a generation ago are still around and (still) aren’t even trying, but the ones who are trying to do the job the right way for the right reasons deserve our respect and the respect of our government, regardless of who is president at the moment.

Advertisements

Rhetoric doesn’t match the facts, and Roberts may not be a traitor to conservatism after all

A follow-up on Thursday’s Supreme Court Obamacare ruling:

The campaign for president hasn’t taken a time out since the court issued its ruling on the health care insurance reform last week; Barack Obama and Mitt Romney are all over it, but it turns out they’re getting a good bit of it wrong—both of them.  Check out the AP fact checker on the rhetoric since last Thursday: the law does not guarantee everyone can keep the insurance they have now indefinitely, 20 million people losing their insurance is a worst-case scenario estimate, there’s no evidence the law will add trillions to the budget deficit or raise taxes on the American people by half a trillion dollars, and very few of us should be counting on rebate checks from our insurance companies.

A healthy portion of the American people had some level of surprise or disgust at the action of Chief Justice John Roberts in this case: surprise that he found the law was constitutional, disgust at his seeming abandonment of conservative principles to come up with a way to find that the law was constitutional.  Today, CBS News quotes sources inside the court who say Roberts changed his mind on this ruling and worked to find a way to save the law, which angered his conservative colleagues.  Meanwhile, two more top conservative columnists, George Will and Charles Krauthammer, have joined the ranks of those who see a silver lining in the ruling: Roberts found a way to strike a blow for limited government while at the same time protect the integrity of the court itself!

Will:

If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: “Under our written Constitution . . . the limitation of congressional authority is not solely a matter of legislative grace.”

Krauthammer:

More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5 to 4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5 to 4 decision split along ideological lines that might be perceived as partisan and political.

Last week I said that it would have been unfortunate for the law to be rejected by a single vote, in what would have amounted to a “party line” vote.  Will and Krauthammer and others think the chief justice of the United States was thinking the same as me…although he was thinking it sooner, I’m sure, and with much greater legal clarity.  But still, he was on the right track…

Windsor not

Look, since I’m kind of on a cranky roll anyway (see two most recent posts, below), here are a few unkind words about Americans’ obsession with tomorrow’s royal wedding.

The one in England…you heard about it, right?

God, who around here hasn’t!?  Honestly, have you thought about what has brainwashed American TV networks—hell, local stations even—into thinking that we care enough about this spectacle to justify their overkill?  Well I have, and the answer is: nothing.  They don’t really care whether we care or not about some royal wedding; it’s just an event—one completely absent any real significance (except for the participants and their families, I assume)—that they can turn into “An Event!” that will attract a lot of eyeballs, which is what they need to sell overpriced advertising.  Have storyline, will hype.

And even at that I wouldn’t be bothered enough to complain, except for one thing.  I have no qualms about a TV company that promotes and broadcasts an event with the intention of making a boatload of money; that’s what they do, whether it’s the Super Bowl or “American Idol” or the last episode of “M*A*S*H.”  But I have significant-sized qualms when they prostitute any credibility they may still enjoy by dressing up this sales opportunity as coverage of serious news when it is without a doubt nothing of the sort, and when we let them get away with it.  By “we” I mean the Great Unseen Unwashed American Tee Wee Viewing Audience, and by “let them get away with it” I mean act like we don’t know or care that they’re blowing sunshine up our collective skirt.

Oh, here’s some good news: television ratings indicate interest in this pseudonews is less than expected…I hope that carries over into tomorrow, too: schadenfreude is best served with tea and biscuits.

And on a related subject: this keen interest from Americans toward a royal wedding seems a bit disloyal, inasmuch as we fought a whole war and everything to make the point that we don’t much care for fancy pants nobles and royalty because "all men are created equal."  So what’s up with that?

If you know anything, thank a reporter

Is it funny-strange that a blog that comments on reporting and journalism has a category for Woeful Journalism but not one to sing its praises, or is it just funny-sad that there hasn’t been a need to have one?

People who came to journalism post-Watergate and later, like I did, have a lot of complaints about the state of the art/profession/trade as it exists today; I suspect our elders have their own hit parade of infamies that we committed.  But my complaint has never been about how the digital revolution is changing the way information is presented to the reader/listener/viewer/consumer/custo-mer, because to my mind the delivery method is a tertiary concern.  The primary concern should be the content, with a little preserving-and-protecting-a-free-and-independent-press as a secondary.

I’m fine with electronic self-publication (duh!), and there’s not a damn thing wrong with everybody expressing their own beliefs and opinions.  But I don’t ever confuse what I and thousands and thousands of other people do at our own private keyboards with what real, professional reporters do out in the world every day.  Today I ran across two great examples of why that job is hard to do, and why it can be dangerous to do.

When the Earth quakes and the ocean covers the land and nuclear reactors split open, real reporters go to the danger because that’s where the story is.  When a dictator sends his army against its own people to suppress their expression of a desire for freedom, real reporters go to the danger because that’s where the story is.  Real reporters leave their comfortable homes and go where the news is happening, to observe real events and talk to real people, to report, so the rest of us can know what’s going on.  The biggest risk we stay-at-home bloggers take is suffering a fragmented hard drive.

The next time you hear someone complain about the biased news media, remind them that it’s real reporters, working for all kinds of publications, who provide us all with the raw data that pundits and demagogues misconstrue to suit their own purposes, and that sometimes they risk their lives to do it.  More times than you probably imagine, they lose their lives doing it.  We owe them our thanks and our respect.

→UPDATE Mar. 21: Times reporters released by Libya