No worries. President Drumpf will dismantle the First Amendment (How? Only he can do it!) and this will all be moot.
12
Journalist deal in both facts and opinions, often concrete and lucid, but sometimes complex and vague. Freedom of the press is a function of free speech, a constitutional right. I that protection is over, we will all have to shut up.
20
Bergdahl made statements in the interviews which were in turn disclosed in Serial. The cat is therefore out of the bag. The admissions he makes in the interviews relate to his motivation at the time he left the unit, so not at all a "fishing expedition".
8
You miss the point: this is not about this case or that. It is about Journalism as a whole: the thin boundrys, if they break once or twice - will keep breacking on and for ever. The slope down will have much more complicated issues to deal with later on. This will take the air out of the freedom and confidance folks have for journalism and eventually hurt all of us by wiping out the very base of the right of the people to know. If you do not like what the NYT writes, than switch news papers, but keep journalism free and trustfull.
11
This opinion is about a very specific situation: where government seeks information provided in confidence to a journalist. Many commenters here criticise journalistic conduct and output. That's as may be. But in my view the Times is right to demand the most stringent protections for the confidentiality between source and journalist. The effect of weakening the legal status of that confidentiality is to discourage sources and to make serious, valuable journalism more difficult.
18
Hahahahaha! Still pretending strongly the jig isn't up, on the passe' 4th Estate..
Sentimental, are we? How cute.
Sentimental, are we? How cute.
1
To my trained thinking, there is a difference between military and civilian trials, in both evidentiary and discovery procedures. Criminal cases adjudicated in civilian courts should be conducted with the strongest protections for defendants and investigative reporters alike; likely there is not much dispute about that outside of the prosecutorial bar. Military trials are another matter entirely. However, protections for parties not on trial in a military court but central to an investigation should be as robust except in the case of a charge of treason. A conviction of desertion in an undeclared war will not draw a capital sentence
1
Journalists as you argue cannot ---- nor ought ---- to be an investigative arm of the criminal justice system. And neither ought gun owners to be part of our law enforcement system licensed by our government in order to purchase or own a firearm for their self-protection, as though they are an arm of our law enforcement. Both freedom of our press and our right to bear arms are our constitutional individual liberties, as protected rights from government infringement. You cannot support press freedom without consistently supporting individual freedom to own a gun for self-protection without government infringement.
6
Oh my god
4
"You cannot support press freedom without consistently supporting individual freedom to own a gun for self-protection without government infringement."
Sure you can. You can support a certain amount of regulation for both. Press freedom is akin to religious freedom and freedom of speech, since all are protected by the First Amendment, and all are subject to some restrictions. The prohibition against yelling "Fire!" in a crowded theatre is but on example. A First Amendment activist is not too likely to shoot anyone either.
Self-protection with regard to owning a gun is an excuse invented by gun manufacturers to sell more guns. In theory, this is not a big deal, but it is a big deal when civilian populations can spend a few hundred dollars and end up with a weapon remarkably similar to those used by our military forces. The potential for mayhem is obvious, and played out every few weeks by another guy spraying bullets into a crowd. Certain restrictions and requirements -- demonstrated knowledge of safe weapon operation, licensure and required renewals, and required insurance to protect both the shooter and the potential shootee -- are perfectly reasonable.
Sure you can. You can support a certain amount of regulation for both. Press freedom is akin to religious freedom and freedom of speech, since all are protected by the First Amendment, and all are subject to some restrictions. The prohibition against yelling "Fire!" in a crowded theatre is but on example. A First Amendment activist is not too likely to shoot anyone either.
Self-protection with regard to owning a gun is an excuse invented by gun manufacturers to sell more guns. In theory, this is not a big deal, but it is a big deal when civilian populations can spend a few hundred dollars and end up with a weapon remarkably similar to those used by our military forces. The potential for mayhem is obvious, and played out every few weeks by another guy spraying bullets into a crowd. Certain restrictions and requirements -- demonstrated knowledge of safe weapon operation, licensure and required renewals, and required insurance to protect both the shooter and the potential shootee -- are perfectly reasonable.
15
Nancy, you must have limited access to publications. There are hundreds of news groups, some on-line, some in hard copy and others by magazine subscriptions which are devoted entirely to news. There is a difference between the meaning of the word "opinion" and the word, "fact". If you approach your reading with a preconceived notion, then you will be unable to distinguish between opinion and fact. If you do a critical read, you will find little, if any, "liberal" reporting. Turn off Roger Ailes propaganda show, protect what is in your best interest. If you are truly a member of the wealthy class
you will certainly ignore this response, and I extend my congratulations on your good fortune.
you will certainly ignore this response, and I extend my congratulations on your good fortune.
8
I'm not a journalist, but to me raw interviews are not the same as segments that have been produced and finished, just not aired. It is wrong to conflate the two things. So to me, the unaired segments were fair game, but unless pieces of the raw interviews between Boal and Bergdahl had been released publicly, those interviews were not.
In addition, I don't think your use of "public domain" is correct. Public domain means not subject to copyright; all of the published and unpublished material is, of course, subject to copyright, whether formalized or naturally occurring as a matter of commemoration, unless the author or person making the recording releases the rights. As a news organization, I'd expect you to be very sensitive to this. I believe you meant "publicly available," a very different thing.
In addition, I don't think your use of "public domain" is correct. Public domain means not subject to copyright; all of the published and unpublished material is, of course, subject to copyright, whether formalized or naturally occurring as a matter of commemoration, unless the author or person making the recording releases the rights. As a news organization, I'd expect you to be very sensitive to this. I believe you meant "publicly available," a very different thing.
2
It's critical that folks be able to speak freely to the press without worrying if third parties (e.g., prosecutors and/or law enforcement) obtained unfettered access to confidential conversations. Otherwise, there will be a chilling effect on potential sources of information hidden from the public's view . . . the disclosure of which is necessary to have a vibrant and vital democracy.
8
The NYT would have a more believable case if it showed more consistent concern for freedom of the press. For example, when will be see the NYT publish the Charlie Hebdo cartoon that led to the killing of nearly a dozen journalists practicing their press freedom? One would think the cartoon was newsworthy. Another example is the failure of the NYT to submit an amicus brief in support of a journalist who is being sued by a climate scientist in what obviously is a SLAPP suit intended to chill exercise of freedom of the press. The ACLU along with such right-wing rags as USA Today, Time, The Washington Post, The Chicago Tribune, The Los Angeles Times, The Detroit Free Press, The Seattle Times, and The Arizona Republic have all submitted amicae briefs, but not the NYT. Until the NYT takes a more principled stand on the exercise of press freedom I cannot take this editorial seriously.
3
It's a damning indictment (no pun intended) of prosecutors that they would rather lazily subpoena information from journalists than try to compile evidence using traditional law-enforcement means. Any prosecutor who is pathetically reduced to relying on journalists notes to build his case means he doesn't have a case to build. Court dismissed.
10
In the cases cited, maybe. If you glance through the comments, though, you will find that the Press does not enjoy the full support of the public for their version of the First Amendment. That amendment guarantees the right to publish, regardless of point of view. The Press, however, always argues that it somehow includes freedom to gather material by any means necessary, and freedom from subpoena of any kind.
There should be some limits to those things, just as there are limits to publication and speech in some cases. In the case of Stephen Kim, the behavior of the AP was exactly consistent with that of a covert agent "turning" a source -- it was entirely identical to conducting espionage. And cases can as easily be found where it is a defense which seeks press information as a prosecutor. The Constitution does not say that only the press may violate a defendant's right to face their accuser.
When the Press acknowledges that, like soldiers, their methods and means are not without limits, and that independent observers should have the right to some transparency in their methods, then and only then will they enjoy the unreserved support of the public. But no, they can not and should not be the sole institution in American politics that is answerable to no one.
There should be some limits to those things, just as there are limits to publication and speech in some cases. In the case of Stephen Kim, the behavior of the AP was exactly consistent with that of a covert agent "turning" a source -- it was entirely identical to conducting espionage. And cases can as easily be found where it is a defense which seeks press information as a prosecutor. The Constitution does not say that only the press may violate a defendant's right to face their accuser.
When the Press acknowledges that, like soldiers, their methods and means are not without limits, and that independent observers should have the right to some transparency in their methods, then and only then will they enjoy the unreserved support of the public. But no, they can not and should not be the sole institution in American politics that is answerable to no one.
3
In most criminal trials, the standard of proof is "guilt beyond a reasonable" by unanimous jury of one's peers. [Although, there are now relatively few criminal trials, as the New York Times has recently reported, because of the power of prosecutors to threaten prohibitively onerous sentences if a plea bargain is not accepted by the accused.]
However, this editorial ignores completely the right of victims of criminal misconduct to justice. For instance: "Mr. Boal is also fighting the demand that he turn over tapes of his conversations with Sergeant Bergdahl, which appears to be a fishing expedition." Sergeant Bergdahl deserted his post in a combat zone and at least two of his fellow soldiers were killed and other soldiers were wounded in the attempt to locate him and bring him back. It is unfair and unjust to the soldiers and their families for the New York Times to describe this search for the truth as to why this occurred as a "fishing expedition." Some things are more important than selling newspapers.
However, this editorial ignores completely the right of victims of criminal misconduct to justice. For instance: "Mr. Boal is also fighting the demand that he turn over tapes of his conversations with Sergeant Bergdahl, which appears to be a fishing expedition." Sergeant Bergdahl deserted his post in a combat zone and at least two of his fellow soldiers were killed and other soldiers were wounded in the attempt to locate him and bring him back. It is unfair and unjust to the soldiers and their families for the New York Times to describe this search for the truth as to why this occurred as a "fishing expedition." Some things are more important than selling newspapers.
2
Please get the backstory correct.
There is no evidence of others dying in looking for him.
There is no evidence of others dying in looking for him.
4
The media also feels it is entitled to freedom, freedom of the press. Does that mean media’s resources published or unpublished, falls under the constitution? I think it should not be automatic, for each situation needs considered on its own merits under the law.
Now days everyone feels entitled to a self-centered freedom to say and do whatever they want without or without consequences. The media propagates this kind reasoning like a virus infecting people at all levels of our society, the rich, middleclass and poor. It seems that principled values in our society, even by those who say they have strong ethical values as the media say, have disappeared. Their lack of scruples stems from our culture where misdirection, lying and dishonesty is acceptable, because everyone does it, especially the media who try to manipulate our thinking
Now days everyone feels entitled to a self-centered freedom to say and do whatever they want without or without consequences. The media propagates this kind reasoning like a virus infecting people at all levels of our society, the rich, middleclass and poor. It seems that principled values in our society, even by those who say they have strong ethical values as the media say, have disappeared. Their lack of scruples stems from our culture where misdirection, lying and dishonesty is acceptable, because everyone does it, especially the media who try to manipulate our thinking
1
Are there situations where a reporter should be compelled to share her notes where she is able to interview the witnesses before the investigators? A conversation with a reporter can have a chilling effect on a witness's desire to later share his story with an investigator (e.g. he has already reviewed his recollections with someone, he may be hesitant to contradict a prior incorrect statement).
There are plenty of instances where a reporter "scoops" the investigators (in both civil and criminal trials), and their unique position as the first interviewer should not have a blanket protection, especially when the interview is available in a recorded format.
There are plenty of instances where a reporter "scoops" the investigators (in both civil and criminal trials), and their unique position as the first interviewer should not have a blanket protection, especially when the interview is available in a recorded format.
Too many comments repeat the litany "freedom of the press" as if it is absolute. It is not. One can find multiple inconsistencies among the multiple "freedoms" guarded by the Constitution that require intelligent resolution. Given that the defense and prosecution's access to the notes are part of fulfilling the Constitution's guarantee of a just trial, and that the notes were created by a known source so that their being revealed endangers no one, makes Boal's argument moot.
Indeed, his principal occupation as screenwriter and film producer implies the notes are intended as source material for a future film -- not a foundation for "journalism" products.
"Freedom" is not "license". It comes with the responsibility to use it wisely. Cloaking one's professional ambitions with that freedom is despicable.
Indeed, his principal occupation as screenwriter and film producer implies the notes are intended as source material for a future film -- not a foundation for "journalism" products.
"Freedom" is not "license". It comes with the responsibility to use it wisely. Cloaking one's professional ambitions with that freedom is despicable.
3
Yes, let's put restrictions on freedom of the press. This country is already speeding down the Banana Republic road, might as well go full throttle and get it over with.
6
At a time when citizens have the least trust on record if our government,it is critical for us to be able to trust the press. It is only those who practice faux journalism that would have us believe otherwise. The press must not only push back here, they must win.
7
Too many commentators are mistaking the specific for the hypothetical- they believe for Bergdahl guilty so they see no issue in handing over documents. Laws are not about Bergdahl, they set precedents that future courts rely on. Let's not get the two confused, the law is the law and need be valid for a non-specific scenario. We need to be able to separate the two and prosecutors have a job to do- they should be required to do it.
5
What kind of information are the police and prosecutors getting from doctors and medical professionals? So far they now have the "legal" ability to forcefully stick a needle into a person to get a blood sample for incriminating purposes. They can "legally" do body cavity searches on the side of the road at simple traffic stops.They mandate that doctors have to report illegal drug use by their patients. The police and FBI want full access to our personal telephones and computers, our financial, medical, personal files and business records without a warrant or reasonable suspicion. They expect full monitoring capabilities of our telephone conversations and internet communications.
2
Seriously? Turn on local news anywhere in the country these days and watch so-called 'news' being teased so that viewers will remain on-channel over commercial breaks. Watch the locals brag about how her they are 'digging' to get the 'facts' as they show you 'team' coverage'.
I've had occasion to see local news mangle issues that I happen to be thoroughly knowledgeable about. And while I don't want courts messing about with journalists, nowadays I have to look very hard to find actual honest journalists.
I've had occasion to see local news mangle issues that I happen to be thoroughly knowledgeable about. And while I don't want courts messing about with journalists, nowadays I have to look very hard to find actual honest journalists.
2
Shield laws are intended to protect the identity of confidential informants. Both of these cases involve people who gave interviews with no confidentiality involved. Just because the journalist or his editors chose not to air the portions, does not give the information protection from disclosure. Allowing this to go the way the Times wishes makes the journalist the filter in deciding not what the public sees in journalism, but the filter on what relevant information is conveyed to the courts.
If the information was freely given without any guarantee of confidentiality, as seems to be the case in both these cases, than it is fair game for a subpoena,
If the information was freely given without any guarantee of confidentiality, as seems to be the case in both these cases, than it is fair game for a subpoena,
5
Two things:
The unpublished Bergdahl material is being subjected to a military court's subpoena, and that court's powers shouldn't reach into the civilian arena. If
the military court issues the subpoena to whom does the press appeal? The Army?
Beyond the question of the military's intrusion into the daily national life lies
the very survival of journalism. Reporters are not agents of the government,
and since journalism came into the modern period reporters have known that they must keep the confidence of their sources or they will not be trusted with sensitive and vital information.
The reporter in this case will have to go to jail hoping to save an American institution from the this stupid act of an Army functionary who probably knows very well what he's doing and doesn't give a damn.
The unpublished Bergdahl material is being subjected to a military court's subpoena, and that court's powers shouldn't reach into the civilian arena. If
the military court issues the subpoena to whom does the press appeal? The Army?
Beyond the question of the military's intrusion into the daily national life lies
the very survival of journalism. Reporters are not agents of the government,
and since journalism came into the modern period reporters have known that they must keep the confidence of their sources or they will not be trusted with sensitive and vital information.
The reporter in this case will have to go to jail hoping to save an American institution from the this stupid act of an Army functionary who probably knows very well what he's doing and doesn't give a damn.
5
"Litigants may seek records from journalists pertaining to nonconfidential sources only if they demonstrate that the information is “highly material and relevant” to a case, that it is “critical or necessary” to a legal claim or defense, and that it cannot be obtained from an alternative source."
So . . . you can't have the information unless you can prove that it is highly material and relevant . . . and if you can't see it, you don't know. "Trust me" is not a phrase that fills me with confidence. Ever.
Kind of like all those emails that were "personal" that were deleted, right? And the investment in cattle futures that goes from $1,000 to $100,000, where there is now a "lack of evidence"?
So . . . you can't have the information unless you can prove that it is highly material and relevant . . . and if you can't see it, you don't know. "Trust me" is not a phrase that fills me with confidence. Ever.
Kind of like all those emails that were "personal" that were deleted, right? And the investment in cattle futures that goes from $1,000 to $100,000, where there is now a "lack of evidence"?
3
Slightly off message, but I do hope there will be a "Presidential Pardon" for Bowe Bergdahl, Chelsea Manning & Edward Snowden before Mr. Obama completes his term in office.
4
Our press can do better reporting if reporters have the same privilege as we give to doctor-patient and attorney-client conversations.
Two things:
First, those are not Constitutional rights, and neither is reporter privilege part of the First Amendment of press freedom. It is a policy decision. Policy must be justified by good, responsible behavior.
Second, there is no privilege for doctors or attorneys either, when it involves theats of future injury, or of ongoing crime. The privilege is only for the past. Reporters are seeking to privilege more, to include their knowledge of impending crimes and coming harm to innocent third persons.
The press does itself no favors by overstating its position.
Specifically as to Bowe Bergdahl, privilege ought to apply. It is past, not threatening new harm anyone. We will get better reporting from extending this privilege, and an informed public is a public interest.
That is not true of all the examples for which reporters seek privilege.
Two things:
First, those are not Constitutional rights, and neither is reporter privilege part of the First Amendment of press freedom. It is a policy decision. Policy must be justified by good, responsible behavior.
Second, there is no privilege for doctors or attorneys either, when it involves theats of future injury, or of ongoing crime. The privilege is only for the past. Reporters are seeking to privilege more, to include their knowledge of impending crimes and coming harm to innocent third persons.
The press does itself no favors by overstating its position.
Specifically as to Bowe Bergdahl, privilege ought to apply. It is past, not threatening new harm anyone. We will get better reporting from extending this privilege, and an informed public is a public interest.
That is not true of all the examples for which reporters seek privilege.
8
Bonie should not even be mentioned here because it was not confidential. If a prison official were in the room and recordings were made, then accuracy of the statements would or should override any shield law. Why take a third party's memory when you have a recording. That's ridiculous.
Bergdahl is more complicated. Fishing with a reporters source is questionable. But the fact that Bergdahl freely allowed himself to be recorded is a hiccup. In effect he published his testimony freely. He may think it confidential but did Bergdahl have editorial control over the article. If he did not then he in effect was allowing the writer editorial control over what is in fact testimony.
And if the reporter was allowed to edit the information, then in fact, the reporter is testifying for Bergdahl.
This is always the stupidest thing criminals do. They talk to reporters. Reporters are not lawyers. A confidential source should be protected. A named source or defendant who openly tries to testify in public in the media should not have those same protections. If they talk openly in front of a reporter, TV crew, etc. then it should all be open to review and testimony.
If you are being tried or have a legal issue, shut up if you don't want it repeated. Or just say what you want repeated.
But really, shut up.
Bergdahl is more complicated. Fishing with a reporters source is questionable. But the fact that Bergdahl freely allowed himself to be recorded is a hiccup. In effect he published his testimony freely. He may think it confidential but did Bergdahl have editorial control over the article. If he did not then he in effect was allowing the writer editorial control over what is in fact testimony.
And if the reporter was allowed to edit the information, then in fact, the reporter is testifying for Bergdahl.
This is always the stupidest thing criminals do. They talk to reporters. Reporters are not lawyers. A confidential source should be protected. A named source or defendant who openly tries to testify in public in the media should not have those same protections. If they talk openly in front of a reporter, TV crew, etc. then it should all be open to review and testimony.
If you are being tried or have a legal issue, shut up if you don't want it repeated. Or just say what you want repeated.
But really, shut up.
7
Bergdahl's failure to shut up should not be the reason an Army prosecutor is attempt to bring down journalism.
3
"Litigants may seek records from journalists pertaining to nonconfidential sources only if they demonstrate that the information is “highly material and relevant” to a case, that it is “critical or necessary” to a legal claim or defense, and that it cannot be obtained from an alternative source."
Clearly, in both cases, the source is nonconfidential as well as both highly material and relevant to their respective cases. The NYT uses ex post facto reasoning to conclude that (in the Bonie case) the evidence wasn't critical in achieving a conviction ("The fact that Mr. Bonie was convicted without the interview outtakes shows that the material was not critical for prosecutors to make their case"). Clearly, it was not so obvious that the evidence was not critical BEFORE the verdict and prosecutors get only one bite at the apple. The NYT then proposes that hearsay evidence instead of the primary evidence is just as good ("... the interview was conducted in front of a jail official, whose testimony would have served as an alternative source for the same information"). The logic is twisted and contorted. These people were being interviewed for publication, be it TV, newspaper or other. There was clearly no expectation of privacy or confidentiality. Why WOULDN'T this evidence be admissible is the better question.
Clearly, in both cases, the source is nonconfidential as well as both highly material and relevant to their respective cases. The NYT uses ex post facto reasoning to conclude that (in the Bonie case) the evidence wasn't critical in achieving a conviction ("The fact that Mr. Bonie was convicted without the interview outtakes shows that the material was not critical for prosecutors to make their case"). Clearly, it was not so obvious that the evidence was not critical BEFORE the verdict and prosecutors get only one bite at the apple. The NYT then proposes that hearsay evidence instead of the primary evidence is just as good ("... the interview was conducted in front of a jail official, whose testimony would have served as an alternative source for the same information"). The logic is twisted and contorted. These people were being interviewed for publication, be it TV, newspaper or other. There was clearly no expectation of privacy or confidentiality. Why WOULDN'T this evidence be admissible is the better question.
6
Andrew, in the Bonnie case that would not have been hear say, the prison official witnessed the interview. He would have been able to give a first hand account of what he heard. Hear say would be Paul told me that Bonnie said. Now the press does need to get out of the tabloid business and get back to reporting real news and doing serious investigating journalism.
1
Exactly: "These people were being interviewed for publication, be it TV, newspaper or other. There was clearly no expectation of privacy or confidentiality". Why WOULD any rational person believe their comments to be truthful, useful, or accurate? There is no requirement against self-dealing, lying, or omission when one is interviewed by a journalist. Prosecutors and courts are as guilty of seeking easy answers and cherry-picking evidence as journalists. Who, as you complain, are.
Doctors willingly gave up their god-like standing in search of income and ease, bankers gladly walked away from credibility and trust in search of legal ways to crush the economy and their customers and now so, have journalists abandoned expectations that they would uncover, fairly analyze, and timely report important events in our national community.
The pink fluff of 'equal coverage', failure to call out liars and cheats from birthers to young-earthers to FOX, eager acceptance corporate domination have all irreparably eroded the profession and call into question any claims it makes for special legal standing. Yes, sources ought to be protected while they are encouraged to share important information, for the sources' sake, not the journalists.
This quaint idea that our justice system (prosecutors, lookin' at you) is so pure that it can be trusted to grab whatever it wants is un-American and speaks to the laziness and egotism that have been the source of so many legal problems of late.
Doctors willingly gave up their god-like standing in search of income and ease, bankers gladly walked away from credibility and trust in search of legal ways to crush the economy and their customers and now so, have journalists abandoned expectations that they would uncover, fairly analyze, and timely report important events in our national community.
The pink fluff of 'equal coverage', failure to call out liars and cheats from birthers to young-earthers to FOX, eager acceptance corporate domination have all irreparably eroded the profession and call into question any claims it makes for special legal standing. Yes, sources ought to be protected while they are encouraged to share important information, for the sources' sake, not the journalists.
This quaint idea that our justice system (prosecutors, lookin' at you) is so pure that it can be trusted to grab whatever it wants is un-American and speaks to the laziness and egotism that have been the source of so many legal problems of late.
2
Journalism has abused its constitutional and moral authority by failing to set limits. Instead, the press effectively argues that anything is fair game be it gossip or outright lies and there should be no legal consequences for false reporting (it is virtually impossible to sue the press and win). Bias, sloppiness, intentional deceit are all acceptable when the test is the constitution. Much like gun nuts, the press nuts overreaches. It is no surprise that we are seeing more scrutiny, more demands for information and finally some legal losses (gawker). The press can reverse only if there is a reversal in their behavior
5
Good stuff here. There is absolutely no sense in expecting journalists to report the facts accurately and completely especially when a crime has been committed.
4
Press doesn't do a good job reporting facts. They are all about opinions. Especially when it fits their liberal agendas.
11
The same could be said for their conservative agendas.
3
Press doesn't do a good job reporting facts. They are all about opinions. Especially when it fits their conservative agendas.
1
Yawn
2
In my opinion, freedom of the press does not extend to the privacy accorded relationships between attorney and client, physician and patient, etc. As has been blatantly obvious in the recent years, journalists produce work product for both profit and propaganda purposes. Facts and knowledge are often cast aside to present a certain viewpoint. Those facts and knowledge - all of them - should be available to both sides in a court of law.
4
you're mixing up the likes of faux entertainment and breitbart, real news organizations don't put out their own garbage point of view unless it's a opinion piece.
3
The freedom of the press is essential for a democracy and above all freedom. I fear for my country.
22
What does freedom of the press mean? Does it mean the freedom to print or publish without restraint, or does it include the right to refuse to provide information requested by the court? And if it does include the right to refuse information requested by the court, who is by definition 'the press"? Are you the press because your comment was printed in the NYT? If courts cannot demand information under punishment of law from anyone who simply claims to be a journalist, you might as well throw out the legal system and the rule of law.
3
Everyone commenting on this case should recognize that it is not about freedom of the press. The NYT is free to publish or not to publish anything it wants to about either of these cases.
The question is whether prosecutors can demand unpublished information freely given by individuals with the expectation that any or all of what they say could be published. I don't think this is as black and white a case as the NYT editors would have us believe.
The question is whether prosecutors can demand unpublished information freely given by individuals with the expectation that any or all of what they say could be published. I don't think this is as black and white a case as the NYT editors would have us believe.
8
@Jim Waddell
Nothing is ever as black and white as the NY Times editors would have us believe.
Nothing is ever as black and white as the NY Times editors would have us believe.
As the NYT does its dead level best to hamper the slow motion guilty plea that is the Bo Bergdahl case. No scandal there, with Obama negotiating with terrorists in secret, breaking American law and trading our very own trader, Bergdahl, for the equivalent of five Taliban Generals, some of whom are already reengaged in their former trade of killing Americans. Yet the left wing Bergdahl apologist train rolls on.
6
King Obama's federal rule of the land.
2
Let's not forget King W the Decider and his rule of the land.
4
If the CIA can "accidentally" lose the interrogation tapes and only copy of the torture report it seems only fair reporters can "accidentally" lose any notes and/or footage.
8
Is the Bergdahl case really a threat to the freedom of the press? The government isn't stopping the journalist from printing anything nor prosecuting them for doing so. Journalists are not spouses or confessors. In the case of Bergdahl, the source wasn't even confidential. So what is the journalist ethically protecting?
Imagine this, a celebrity is giving an interview for a profile about their life. At one point, the celebrity tells the journalist they killed someone. How is the journalist protected from concealing this crime when issued a subpoena?
Imagine this, a celebrity is giving an interview for a profile about their life. At one point, the celebrity tells the journalist they killed someone. How is the journalist protected from concealing this crime when issued a subpoena?
5
Freedom of the press is vitally important, and deserves strong protections. There will be exceptions, and it’s going to be hard to draw clear lines in the sand. Some situations will have to be decided on a case by case basis, with guidance from legislation, legal precedent, the Constitution, and common sense. The concluding paragraph of this editorial has it right in saying “While it may sometimes be justifiable to drag a journalist into litigation, the bar for doing so should remain extraordinarily high.”
When human lives are at stake, for example, in preventing a possible terrorist attack, reporters may be compelled to provide information; in this circumstance, most reporters will not need compulsion to provide information that might prevent the loss of life. It’s harder in situations involving convicting an alleged violent criminal; society has a strong interest in keeping such people off the street; the courts will have to render difficult judgements.
Freedom of the press must hold even in circumstances that may be distasteful to some. Consider the Citizens United decision, in which SCOTUS held that broadcast of a video unfavorable to Hillary Clinton during primary season was protected speech. The Times, many readers, and Ms. Clinton wish to see this decision overturned. This would be a major mistake. Freedom of the press must be broadly applied, or it becomes meaningless. After all Times itself is a corporation, and regularly endorses candidates at election time.
When human lives are at stake, for example, in preventing a possible terrorist attack, reporters may be compelled to provide information; in this circumstance, most reporters will not need compulsion to provide information that might prevent the loss of life. It’s harder in situations involving convicting an alleged violent criminal; society has a strong interest in keeping such people off the street; the courts will have to render difficult judgements.
Freedom of the press must hold even in circumstances that may be distasteful to some. Consider the Citizens United decision, in which SCOTUS held that broadcast of a video unfavorable to Hillary Clinton during primary season was protected speech. The Times, many readers, and Ms. Clinton wish to see this decision overturned. This would be a major mistake. Freedom of the press must be broadly applied, or it becomes meaningless. After all Times itself is a corporation, and regularly endorses candidates at election time.
1
A journalist is not a defense attorney assigned to the defendant with privilege. My understanding has always been that this is unique. I also understand that journalists maintaining the secrecy of sources are protected and that must remain. But once the source is known and material is published--any material, I don't understand why "out-takes" wouldn't be open to investigation. If the interview took place in front of a guard--all the more reason the information should be made available--clearly the defendant didn't require secrecy, and it is not the officer's role to take notes. Might the interview have been videotaped by officials? Why should there be litigation--turn over the notes! I'm open to and imagine more education might sway me otherwise, but not at the moment.
5
Both of the examples sound like fishing expeditions for prosecutors. I don't have much fondness for the way reporting has been done for the last thirty or so years but this line should not be crossed. Freedom of the press still means something.
9
Look, we either have freedom of the press or we don't. Life isn't always simple though. I'm sure if the Times or other responsible news organizations had info of something like lives being in danger they would help solve the problem. Can't say that about all media, blogs, etc.
To have the press assist in a prosecution is nuts.
To have the press assist in a prosecution is nuts.
8
We want police to wear body cameras so the truth is revealed. But truth from a reporter is protected when it might help solve a real problem. I want the press to be protected but not at the expense of truth.
And by the way, the press doesn't impress me much in recent years as all too often it is self serving and filled with speculation and political favoritism instead of fact.
And by the way, the press doesn't impress me much in recent years as all too often it is self serving and filled with speculation and political favoritism instead of fact.
13
I think the biggest threat to the press has been the press itself.
Ever since they started to be "embedded journalist" and part of the same circle they are supposed to be reporting on, they sold their journalistic integrity for schmoozing with the insiders, the powerful, the rich.
I have very little sympathy for the Fifth Estate, they sold out on their own accord.
I do, however, support privacy shield laws for journalists, just don't whine about it as if it is the only reason you have been doing such a terrible job lately, as was evident in this election coverage.
Ever since they started to be "embedded journalist" and part of the same circle they are supposed to be reporting on, they sold their journalistic integrity for schmoozing with the insiders, the powerful, the rich.
I have very little sympathy for the Fifth Estate, they sold out on their own accord.
I do, however, support privacy shield laws for journalists, just don't whine about it as if it is the only reason you have been doing such a terrible job lately, as was evident in this election coverage.
8
Aren't those standing trial often counseled NOT to speak to the press? I understand that journalists can protect their sources if it would be dangerous to reveal an identity, but whatever information given freely that they've decided to leave out of a report is not the same thing. Isn't that's just editing? And even if journalists are editing out information they feel may be incriminating, they are under no legal obligation to do so. They have the right to protect sources (eg. whistle-blowers) but they also have the right to reveal those sources, too - a risk that any whistle-blower would have to take. But as for those accused of crimes and standing trial? They gave the information willingly as part of a public record, and usually against their lawyers counsel. Why couldn't the court subpoena it?
2
The press isn't an objective body anymore, with an interest in presenting facts to the public. Nor is the press a counterbalance to the establishment.
Two weeks ago, the Times ran a front page piece on how this not being a normal election year, it's journalists were no longer obligated to follow journalistic standards, and would be playing a more active role in preventing Trump's election.
And the proof that the press was biased by design, and pursuing particular interests, was highly visible long before this.
Because of these moves by the press, we've reached the point where the press has about as much credibility as any other digital marketing platform. And it's safe to assume that whatever info the press collects in interviews is only part of a pre-editing campaign that will ultimately fit into a pre-formed narrative that serves a political or ad revenue based agenda.
So why should any of us care? Why shield people who work for a capitalist version of Pravda from having to give up what they know when it serves the interests of justice? At this point the credibility of the courts and judicial system far outstrips that of the press, so the courts and judicial system shouldn't be blocked from getting access to what the press has. The press has basically surrendered it's claim to being an instrument of justice.
Two weeks ago, the Times ran a front page piece on how this not being a normal election year, it's journalists were no longer obligated to follow journalistic standards, and would be playing a more active role in preventing Trump's election.
And the proof that the press was biased by design, and pursuing particular interests, was highly visible long before this.
Because of these moves by the press, we've reached the point where the press has about as much credibility as any other digital marketing platform. And it's safe to assume that whatever info the press collects in interviews is only part of a pre-editing campaign that will ultimately fit into a pre-formed narrative that serves a political or ad revenue based agenda.
So why should any of us care? Why shield people who work for a capitalist version of Pravda from having to give up what they know when it serves the interests of justice? At this point the credibility of the courts and judicial system far outstrips that of the press, so the courts and judicial system shouldn't be blocked from getting access to what the press has. The press has basically surrendered it's claim to being an instrument of justice.
2
Yep, very important. The press has already shown not to be free though.
The major liberal and progressive leaning press institutions (at least as seen so by many) did not give the positions of the candidate that managed to inspire and set afire roughly half of their readers a voice or fair representation in the primary of all primaries where this has mattered for once to the world, a first in history that we have seen the people of the U.S.A. rise up against the oligarchy ruling it and dictating the major decisions in the world´s fate.
The inevitable implication: the press already ain´t free anymore, but in the pocket of the interests that want to keep the trillions robbed from the collective by the oligarchs shielded and safe in their tax-free shell companies, and also want them to be able to keep dictating policies in the backrooms and to even brazenly occupy all the front desks in governmental agencies like the FDA, EPA etc., so they can practically self-approve, self-control and self-bless their own profit-driving poisons, hyperpriced in hidden oligopolist procedure, all the while controlling, manipulating and falsifying the "scientific" research on them by virtually completely dominating the field of those who do that research with their deep money pockets.
Sure, the Times occasionally writes about these practices. But when the rubber met the road, ignoring, sidelining and distorting the cause to revolt against these practices appeared to be the shameless priority.
The major liberal and progressive leaning press institutions (at least as seen so by many) did not give the positions of the candidate that managed to inspire and set afire roughly half of their readers a voice or fair representation in the primary of all primaries where this has mattered for once to the world, a first in history that we have seen the people of the U.S.A. rise up against the oligarchy ruling it and dictating the major decisions in the world´s fate.
The inevitable implication: the press already ain´t free anymore, but in the pocket of the interests that want to keep the trillions robbed from the collective by the oligarchs shielded and safe in their tax-free shell companies, and also want them to be able to keep dictating policies in the backrooms and to even brazenly occupy all the front desks in governmental agencies like the FDA, EPA etc., so they can practically self-approve, self-control and self-bless their own profit-driving poisons, hyperpriced in hidden oligopolist procedure, all the while controlling, manipulating and falsifying the "scientific" research on them by virtually completely dominating the field of those who do that research with their deep money pockets.
Sure, the Times occasionally writes about these practices. But when the rubber met the road, ignoring, sidelining and distorting the cause to revolt against these practices appeared to be the shameless priority.
2
I have problems with the free press issue. So much of what claims to be the products of journalism are really stories advancing political and other agendas. I don't know how one can call oneself a journalist simply by writing an article for a paper. A lot of the stuff we find in our papers push a point of view or an agenda. Don't have a problem with that. But don't call it journalism; perhaps a story with an angle!
2
The issue I have with this claim by the NYT is that a journalist can go out and gather all their 'evidence' through a journalist investigation, but they also get to choose what of that information gets published. This gives the journalist wide latitude to tell the story how they see fit - feeding a story to the public. However, if the public had access to all the information, they may not reach the same conclusion.
There is a reason for discovery in legal proceedings - both sides get access to the same evidence, each can make their case based on that evidence and then the judge/jury decides.
With journalists, we (the public) only get to see one side. And in this age, that's become a very biased one side, even for the NYT.
There is a reason for discovery in legal proceedings - both sides get access to the same evidence, each can make their case based on that evidence and then the judge/jury decides.
With journalists, we (the public) only get to see one side. And in this age, that's become a very biased one side, even for the NYT.
3
Dennis, what you're not remembering is that other journalists were doing the story so that you could pick and choose whatever version you preferred to believe. You probably happen not to believe this particular reporter's story in the Bergdahl case, and so you now believe that all of journalism should be subjected to military court subpoenas.
1
At issue is the confidentiality that is granted to journalists, in order for them to gather information. Without it, the informant, defendant, interviewee would not speak to the journalist. This should be protected. Let police, or military, gather their own information, if they can.
7
This is a sticky situation that shouldn't exist. The culprit is our antique "us against them" at any cost "justice" system, where the best show wins. Justice should be about seeking the whole truth as best it can and then creating a responsible remedy. The only way for this to happen is to expose all the information available, which all to often would entail exposure of all media information.
Unfortunately, under our secrecy laws, which I disagree with, it also exposes whistle blowers to enhanced scrutiny. To me the solution is either the repealing of much of the secrecy laws or the creation of solid whistle blower protection law which would require agency heads to address all the concerns of the whistle blower.
Unfortunately, under our secrecy laws, which I disagree with, it also exposes whistle blowers to enhanced scrutiny. To me the solution is either the repealing of much of the secrecy laws or the creation of solid whistle blower protection law which would require agency heads to address all the concerns of the whistle blower.
1
I think a lot of you are missing the boat here. The argument isn't that journalists sometimes use their position to push an agenda or even at times detrimental to a litigation. It is that the information obtained between source and reporter can not and should not be forced to revealed. The artice refers already to 4 instances where this case has already been cited as legal precedent to turn over information on on going investigations. It hinders a journalists job for true investigative jorunalisim. What tool would have to keep corrupt politicians or corporations accountable? Maybe I'm being naive or too simplistic.
4
Robert, Your concerns are valid but the motive for investigative journalism was that all the facts would be told. Withholding information seems to violate that premise. Perhaps journalists jobs might be harder but it would not be impossible. We used to have a motto that basically said it was better to let 1000 guilty go rather than imprison one innocent person. The formentioned law denies the state and the defense the ability to fully advocate. The press is important, but not more important than truth and justice. If the press cannot see that then perhaps their protections are not valid and warranted these days.
1
I don't see where the unaired segments of an interview given by the subject with the knowledge that it might be televised should be kept from legal authorities. Conversations taking place with the expectation of privacy are a different kettle of fish entirely.
19
The journalist usually promises anonymity to the people she interviews.
The case reminds me (by a circuitous mental route) of the CIA infiltrating vaccination programs for polio in order to spy on the inhabitants of a country. The result is that people refuse to be vaccinated and polio has once again raised its ugly head. Illnesses know no national or class boundaries.
If journalists are not able to keep their promise of secrecy, then no one would ever speak to them and we would lack the information crucial for members of a democracy to do their informed voting duty.
The case reminds me (by a circuitous mental route) of the CIA infiltrating vaccination programs for polio in order to spy on the inhabitants of a country. The result is that people refuse to be vaccinated and polio has once again raised its ugly head. Illnesses know no national or class boundaries.
If journalists are not able to keep their promise of secrecy, then no one would ever speak to them and we would lack the information crucial for members of a democracy to do their informed voting duty.
2
I will only address use of the reporter's information in a criminal trial.
A reporter must be compelled to turn over any exculpatory to the defense in a criminal trial.
Suppose the defendant confesses to the reporter.
That confession like ALL out of court confessions should be inadmissible. Treason is the only crime defined in the Constitution.
To convict for treason using a confession the Constitution requires the confession be made in OPEN court.
Laws should be changed so that this standard is applied in ALL criminal cases.
That would mean a confession to a reporter should be inadmissible.
Suppose a reporter learned from a source about some illegal government activity such as use of torture or secret prisons etc.
That is a different issue which I will not discuss here.
A reporter must be compelled to turn over any exculpatory to the defense in a criminal trial.
Suppose the defendant confesses to the reporter.
That confession like ALL out of court confessions should be inadmissible. Treason is the only crime defined in the Constitution.
To convict for treason using a confession the Constitution requires the confession be made in OPEN court.
Laws should be changed so that this standard is applied in ALL criminal cases.
That would mean a confession to a reporter should be inadmissible.
Suppose a reporter learned from a source about some illegal government activity such as use of torture or secret prisons etc.
That is a different issue which I will not discuss here.
1
That's an interesting take but do people "confess" to journalists? If so, can't one reasonably argue that all statements to everybody are "confessions"? How, then, are any statements made outside of court admissible in court?
2
At this point in time, are we now to believe that our most important constitutional Freedom of Speech and of the Press are up for grabs by the political class?
IMPOSSIBLE!
10
I have a problem with the freedom of the press claim. What is the definition of a journalist? If someone is a medical professional or a lawyer for instnace there is a degree and a bar or medical exam, but no similar professional qualification exists for a journalist. If I work for the NYT of course there is a presumption; but what if I write a blog, write an e-mail, am in the process of writing a book, or thinking about writing a book - am I therefore a journalist entitled to protection of material and sources? The problem is that anyone can claim to be a journalist entitled to protection, and this is obviously untenable. The laws need to be much more clearly written with regard to what is allowable and what is not. At present the situation and the claim of protection is to vague.
24
When the First Amendment was written, the Press meant literally the printing press and what people chose to print on it. Since then, the definition of The Press has clearly expanded from actual paper and ink to include later technologies, including communication tools in the 19th century such as telegraph and telephone, 20th century tools like recording devices, and distribution methods of both radio and broadcast television. All have been accorded to be The Press. Now there's the Internet and most newspapers and other broadcast journalists have their web sites--like this one by the Times. Would anyone deny that RealClearPolitics, Nate Silver's 538, or Huffington Post are covered by the term The Press?
While the Constitution doesn't explicitly grant lawyers confidentiality status, the right to an attorney makes no sense without it--it is implicit. Nor does the Constitution protect doctor-patient confidentiality, but we universally infer it (except for some right-wing legislators who want to publicize which women have had abortions to shame them).
The right of The Press is pretty explicit that Congress may NOT abridge the freedom of the press.
Yet government prosecutors are ALWAYS trying to find ways over, under, around or through that right to "get" at who and what they believe are criminals and crimes, especially when it comes to whistle blowers who embarrass them or even open government officials to prosecution.
It is a right that MUST be protected & reinforced.
While the Constitution doesn't explicitly grant lawyers confidentiality status, the right to an attorney makes no sense without it--it is implicit. Nor does the Constitution protect doctor-patient confidentiality, but we universally infer it (except for some right-wing legislators who want to publicize which women have had abortions to shame them).
The right of The Press is pretty explicit that Congress may NOT abridge the freedom of the press.
Yet government prosecutors are ALWAYS trying to find ways over, under, around or through that right to "get" at who and what they believe are criminals and crimes, especially when it comes to whistle blowers who embarrass them or even open government officials to prosecution.
It is a right that MUST be protected & reinforced.
4
"The problem is that anyone can claim to be a journalist entitled to protection"
Nope. Wrong. Not true.
Nope. Wrong. Not true.
1
You want to license speech? That is what you are advocating.
2
Can't wait to see what the Rose Garden hero, as another commentator described him, had to say.
4
Big Brother is alive and well and the Constitution is sinking.
33
I disagree. The Constitution is manifest out of conflict, and has been under attack from ALL directions since its inception. It can take it, but it is all the more reason to push the Supreme Court back to center-left. "Dropping out" of this election due to spite will NOT lead this country to a better place.
"Under criminal law, a principal is any actor who is primarily responsible for a criminal offense. Such an actor is distinguished from others who may also be subject to criminal liability as accomplices, accessories or conspirators."
It is about time journalists who meddle in the affairs of criminals and witnesses to a fact, by crossing the boundary of news reporter to accessory to evasion of justice, or as a principle of the unethical or criminal obstruction of justice, be accountable for all the relevant facts they learn which can assist in the prosecution of criminal conduct in the interest of justice...not made up stuff.
It is about time journalists who meddle in the affairs of criminals and witnesses to a fact, by crossing the boundary of news reporter to accessory to evasion of justice, or as a principle of the unethical or criminal obstruction of justice, be accountable for all the relevant facts they learn which can assist in the prosecution of criminal conduct in the interest of justice...not made up stuff.
7
Ayup, totally agree. This is no different than any other witness compelled by subpoena. "Journalists" are not entitled to decide which facts they parcel out, in what context, when it concerns our courts enforcing law. They must be compelled to reveal "The WHOLE Truth, and Nothing but the Truth".
1
I say, publish the interview in full, notes and all.
Defendants reach out to reporters to influence the jury pool. They can and, presumably with counsel present decide what questions they'll answer without having to face the devastating cross examination which could undermine their narrative were they to testify at trial.
Reporters, like everyone work to advance their personal agenda, often resorting to high principled platitudes to veil that reality. What ends up published in part reflects his or her conscious or subconscious imperative.
Since the defendant and the reporter are essentially partners in the process, and in light of the fact that The First Amendment was designed to keep government honest, it would seem incongruous if not unprincipled to permit a defendant and/or reporter "edit" the interview thus limiting the information available to the public.
Defendants reach out to reporters to influence the jury pool. They can and, presumably with counsel present decide what questions they'll answer without having to face the devastating cross examination which could undermine their narrative were they to testify at trial.
Reporters, like everyone work to advance their personal agenda, often resorting to high principled platitudes to veil that reality. What ends up published in part reflects his or her conscious or subconscious imperative.
Since the defendant and the reporter are essentially partners in the process, and in light of the fact that The First Amendment was designed to keep government honest, it would seem incongruous if not unprincipled to permit a defendant and/or reporter "edit" the interview thus limiting the information available to the public.
8
"Defendants reach out to reporters to influence the jury pool"
Please show me 1 instance of a defendant that reached out to the press and actually influenced a jury pool. But there are plenty of times the police and prosecution leak information to sway the public. That's okay though, because they're the good guys, right?
Please show me 1 instance of a defendant that reached out to the press and actually influenced a jury pool. But there are plenty of times the police and prosecution leak information to sway the public. That's okay though, because they're the good guys, right?
3
"Defendants reach out to reporters to influence the jury pool"- No, reporters reach out to defendants because it is NEWS, and it makes money.
"Reporters, like everyone, work to advance their personal agenda" - No, reporters advance their employers' agenda, which is to make money.
"The First Amendment was designed to keep government honest" - No, it was *enshrined* to allow people to say what they damn well want, without fear of reprisal from the government or people who disagree with them.
"Reporters, like everyone, work to advance their personal agenda" - No, reporters advance their employers' agenda, which is to make money.
"The First Amendment was designed to keep government honest" - No, it was *enshrined* to allow people to say what they damn well want, without fear of reprisal from the government or people who disagree with them.
2
I fail to see how not turning over evidence implicating a criminal violates the freedom of the press. There is no gag order preventing news from being released- the opposite is occurring.
9
SENTENCING In the Bonie case did not appear to have been affected by the lack of private material. So it presents a clear and present danger to the protection given to journalists and the freedom of speech of those interviewed. It seems that the decision in the Bonie case would stand as a precedent that the material demanded by the prosecution was above and beyond what was necessary, therefore violating the Constitutional guarantee of First Amendment rights. In the Bergdahl case, the demand for unreleased information is described as a "fishing expedition," meaning that the need for the unreleased material has not be clearly defined. I'm surprised that the ACLU has not yet gotten involved in these cases. I hope it will forthwith.
11
How does one determine the necessity of the material without reviewing it, at least incamera?
Imagine if Nixon's federal prosecutors had hauled-in Bob Woodward and Carl Bernstein, obtained notes from their interviews and scoured the materials they had shared for review by Ben Bradley.
45
I have little sympathy for a free press that is explicitly bias in their political preferences. If you wanted the respect and support of the public, you shouldn't have abused the privilege off your position, protected or otherwise. Don't ask me to donate to the kickstarter.
16
But if every press outlet was just like Faux Noos that would be different, amirite?
2
Andy--In this case, it is an explicit bias toward democratic freedom. We won't need your donation, thanks.
2
ChesBay--Just because your bias is more accurately represented here doesn't excuse the taint of bias. Would you like your doctor to behave like either side of the news media? Red pill. Blue pill. Which fantasy do you prefer?
The Times, the unabashed agitprop arm of Obama and the Clinton machine, is hardly the one to make this case.
The Times—and its press stenographers downstream—relinquished their 1st Amendment rights when they abandoned not only their purpose and awesome responsibility but even any pretense thereto.
"All the news that's fit to print." Indeed.
The Times—and its press stenographers downstream—relinquished their 1st Amendment rights when they abandoned not only their purpose and awesome responsibility but even any pretense thereto.
"All the news that's fit to print." Indeed.
12
Interesting meme. Evidence?
1
So what's your opinion of Fox News and the Wall Street Journal?
3
If Obama has soooo much power than why does Faux news still exist. Why is hate AM radio even allowed to broadcast like Nazi era propaganda. One hears what they want to listen to. The freedom of the press should be a priority, even if it violates your sensibility.
1
Freedom of the press as a stalwart defense of our freedoms is a given. That does not mean that we canonize reporters by granting to them "privilege" or "confidentiality", protections given only to the status of priest-penitent, doctor-patient, and attorney-client. In their attempts to get at the truth of a matter under dispute the courts are entitled to comments gratuitously given by a witness to a guy or gal with a notebook.
The Times has caused enough damage to the legal process by the Supreme's decision in the Sullivan case, which was tantamount to allowing the press to lie about a public official without fear of liability, except in extreme cases.
Lying to a witness by telling him his comments to a reporter are "protected" is an affront to our system and an abomination. .
The Times has caused enough damage to the legal process by the Supreme's decision in the Sullivan case, which was tantamount to allowing the press to lie about a public official without fear of liability, except in extreme cases.
Lying to a witness by telling him his comments to a reporter are "protected" is an affront to our system and an abomination. .
9
There is a line from a crime drama that goes sort of like this, "Every time you talk about a crime you have committed its like you commit it all over again, and give them one more chance to catch you."
1
Whatever the eventual ruling in these cases, there is one principle that must be preserved: no one should feel that whenever they talk to a reporter they are thereby sharing information with law enforcement authorities. The chill that would bring to the operation of the free press would be frightening.
81
If you talk to the author/producer of a documentary, it is difficult to make an argument that the only aspects of what you said that should be made public are the ones that appeal to the artistic vision of the filmmaker.
1
Then wear a sweater.
I think the tree was confused for the forest: one can't talk seriously about a free press in the US without talking about Peter Thiel's vindictive take-down of Gawker Media. When billionaires are allowed to stalk, and eventually kill, media outlets with whom they have beefs simply by virtue of having enough cash to sustain litigation that would bankrupt almost all individuals and many corporations, an independent press unfettered by political and financial threats is pure mythology. Agree with Thiel's Randism or not, it's uncomfortable to know that he won his vendetta not on the merits but on the millions he was willing to spend to prosecute a personal grievance against the press.
28
He won on the merits, according to the unanimous decision of the jury.
One could just as well ask about how unfair it is that only people with millions of dollars to burn are able to get some measure of justice against gossip rag publishers who pretend to be journalists.
One could just as well ask about how unfair it is that only people with millions of dollars to burn are able to get some measure of justice against gossip rag publishers who pretend to be journalists.
Freedom of the press is essential for democracy. Who, though, decides what is and is not publicly reported? Is the reporter and/or editor deciding which statements are kept private (secret?)? I would assume that when a reporter interviews a subject, that that subject is (mostly) agreeing to have what he/she shares made public (otherwise what's the point in telling a news person that information?).
I am not supporting the government/prosecutors unbridled access to a reporter's notes, but I am wondering about where the authority to decide what is and is not shared should lie and whether there are any checks on that authority.
I am not supporting the government/prosecutors unbridled access to a reporter's notes, but I am wondering about where the authority to decide what is and is not shared should lie and whether there are any checks on that authority.
14
An article is published after it has been written by a reporter and approved by the editor of the newspaper.
1
If the defendant in a criminal investigation is entitled to make his case to a reporter, and that reporter publishes the result of the interview along with the name of the source who is also the subject of the reporting, it seems like the prosecutors are entitled to know what else the defendant has said.
Once a defendant has decided to make his case in the court of public opinion, the prosecutor is entitled to see and hear every communication with his press corps.
Once a defendant has decided to make his case in the court of public opinion, the prosecutor is entitled to see and hear every communication with his press corps.
Yes, we know. The question is, does the editor see all the material that was collected before the story was written? Does the editor know what was left out and why? Who makes the decision about what is included in a story?
Well, we now have the official press’s reaction to a claim by litigators that they have a right to use what a defendant says to bolster a case against him. Because that’s what it really comes down to. As to the nature of that reaction, quelle surprise. There has ALWAYS been a basic conflict of interests between those who prosecute (and defend) and those who investigate for purposes of reporting news. Clearly, interviewees will be less willing to provide journalists with facts or even merely their view of them, if they believe that what they say may end up biting them in a legal proceeding.
The editors’ stance notwithstanding, BOTH sides make respectable arguments, not just the NY Times. We can only hope that the state’s jurists, and if it gets that far the federal courts, are creative enough to split the baby in a way that adequately protects BOTH interests, but in any event the Times shouldn’t expect that the eventual ruling will COMPLETELY defend their interests in this matter.
My sense is that one possible avenue of productive argument is that defendants seek out or agree to meet with journalists for help just as they do lawyers, and since lawyers are accorded confidentiality rights with their clients …
The editors’ stance notwithstanding, BOTH sides make respectable arguments, not just the NY Times. We can only hope that the state’s jurists, and if it gets that far the federal courts, are creative enough to split the baby in a way that adequately protects BOTH interests, but in any event the Times shouldn’t expect that the eventual ruling will COMPLETELY defend their interests in this matter.
My sense is that one possible avenue of productive argument is that defendants seek out or agree to meet with journalists for help just as they do lawyers, and since lawyers are accorded confidentiality rights with their clients …
4
Unfortunately, Mr Luettgen's suggested remedy has a serious flaw. If the journalists are accorded confidentiality rights (presumably in order to protect the defendant), then surely the publication of any of that material should require the defendant's consent. I doubt that the media would find this congenial.
3
ERP:
On the surface yours appears to be a good point, despite the fact that it probably comes direct from the German global HQ of SAP.
But there's nothing stopping the press from obtaining a waiver prior to any interview of the right to publish the results of the interview. In any event, no compromise to protect opposed but compelling interests is likely to be perfect for EITHER side.
On the surface yours appears to be a good point, despite the fact that it probably comes direct from the German global HQ of SAP.
But there's nothing stopping the press from obtaining a waiver prior to any interview of the right to publish the results of the interview. In any event, no compromise to protect opposed but compelling interests is likely to be perfect for EITHER side.
2
President Obama (I voted for him 3x) has been the most aggressive President in history in his attempt to staunch government leaks to the press. Just look at the NY Times' own James Risen. What I can't understand is how Edward Snowden's contract provision makes it a crime to release any information to the public. How can that law be enforced when the information itself revealed that Mr. Obama violated the constitution?
7
Trying to protect the Obama Rose Garden hero?
10
What are you talking about?
3
They are implying that the NYT has some stake in protecting Bowe Bergdahl (the "Obama Rose Garden hero"). Not sure what they are supposing that stake to be though. Vague insinuations are boring.
1
Sounds like the prosecutors do not want to do the hard work in their cases. They find it easier to issue a subpoena instead of putting time and thought into their cases.
The prosecutorial mind is shallow and the constitution is becoming Swiss cheese. Will someone realign this ship before we hit a national iceberg?
The prosecutorial mind is shallow and the constitution is becoming Swiss cheese. Will someone realign this ship before we hit a national iceberg?
48
Only one part of the Constitution is still sacrosanct, and that's the Second Amendment. All else is malleable, including to the Supreme Court.
1
Can't we find it within ourselves as a nation to hold at least one of the four essential pillars of our democracy inviolate?
For those who don't understand what's really at stake here, I suggest a look (via Google or Wikipedia) at one of the most important yet unsung founders of our country and our way of life, John Peter Zenger.
For those who don't understand what's really at stake here, I suggest a look (via Google or Wikipedia) at one of the most important yet unsung founders of our country and our way of life, John Peter Zenger.
48
Not when one of those pillars has an obvious liberal bias. s/
Prosecutors are not seeking confidential sources here, so I don't see how the prosecutors are shrinking the scope of NY's press shield law, as this editorial claims.
On the contrary, the NY Times seems to be seeking to expand the press shield law. Giving the press the power to decide which materials have constitutional protection sounds like a really bad idea.
Giving that power via a statute sounds like an excellent method for persuading courts to invalidate the entire statute.
On the contrary, the NY Times seems to be seeking to expand the press shield law. Giving the press the power to decide which materials have constitutional protection sounds like a really bad idea.
Giving that power via a statute sounds like an excellent method for persuading courts to invalidate the entire statute.
17
But I thought the people who sit at the Editorial board doing nothing besides reading and saying their opinions about things they know nothing about were experts who could not be questioned!
2
Some professions other than journalists are shielded from providing privately gathered evidence in trials: Priests, psychiatrists, and other members of the clergy and medical professions enjoy such "privileges" as a penitent or patient can't receive the care or redemption he or she needs without such protections.
I would think that private conversations between citizens and journalists gathered as research for future articles would be sacrosanct as well. As this article says, prosecutors need merely subpoena those involved to be witnesses, rather than forcing journalists to betray sources.
The concept of privacy seems to be continually in flux: protected based on whose protecting whom, until cases become a political football, as in the Bergdahl case.
I hope the protections traditionally afforded people told their conversations are indeed private stay in place (unless they give permission)--otherwise, nobody will ever talk to anyone again, and the country will lose the power of an investigative press performing a valuable service once all the facts are gathered and sources can remain shielded, if desired.
I would think that private conversations between citizens and journalists gathered as research for future articles would be sacrosanct as well. As this article says, prosecutors need merely subpoena those involved to be witnesses, rather than forcing journalists to betray sources.
The concept of privacy seems to be continually in flux: protected based on whose protecting whom, until cases become a political football, as in the Bergdahl case.
I hope the protections traditionally afforded people told their conversations are indeed private stay in place (unless they give permission)--otherwise, nobody will ever talk to anyone again, and the country will lose the power of an investigative press performing a valuable service once all the facts are gathered and sources can remain shielded, if desired.
109
This is where case-law grays. Although you might believe journalistic conversations to be sacrosanct, to me--and to judges--that seems kind of ridiculous to put it on par with conversations with priests, doctors, and counsel. In those professions, the privilege exists to protect the speaker: the one seeking counsel of those individuals. But here, it is protecting primarily the journalist, and although I do advocate for some sort of protection, it is not sacrosanct and should not be held as high as other legally recognized privileges. I'm sure I'm in the minority in this readership, but I'm not in the general public, and certainly not in law.
1
A reporter interviews someone who is accused of a crime. He is sympathetic to the accused and writes an article that is biased in favor of the accused, and omits the fact that the accused has admitted to the crime or has revealed facts that would only be known by the person who has committed the crime. The accused gave the interview in the hopes of manipulating public opinion.
Freedom of the press is intended to facilitate the spread of information, not to give propaganda power to a reporter. This is a completely different situation from one in which a reporter interviews a whistleblower who has knowledge of a crime or other nefarious act but fears repercussions if his identity is revealed.
Freedom of the press is intended to facilitate the spread of information, not to give propaganda power to a reporter. This is a completely different situation from one in which a reporter interviews a whistleblower who has knowledge of a crime or other nefarious act but fears repercussions if his identity is revealed.
A big word you could have used is - confidential. The legal difference in meaning between it and -private - are substantial.
A free press is a pillar of a free society. But if a reporter has information that might stop a terrorist attack, doesn't s/he have a duty to turn that information over to the authorities? Why is a journalist allowed to decide what is or is not in interest of national security? Judy Miller comes to mind!
One threat to the press not addressed here is Donald Trump. As a candidate, he has demeaned real journalists as well as the Faux kind. He has threatened to blacklist whole newspapers and TV channels.
One threat to the press not addressed here is Donald Trump. As a candidate, he has demeaned real journalists as well as the Faux kind. He has threatened to blacklist whole newspapers and TV channels.
5
You reach, sir.
To equate a newspaper's source to an alleged (and non existent) 'terrorist' threat is nothing more than smoke and mirrors for those who would beat the press into silence.
To equate a newspaper's source to an alleged (and non existent) 'terrorist' threat is nothing more than smoke and mirrors for those who would beat the press into silence.
55
You overreach, ma'am. Beat the press into silence? Ever hear of a happy medium, or are you so American there is only extremism?
4
dEs accuses Dectra of overreach but sees nothing wrong with his inventing an episode straight out of the tv series 24 to make his point.
Oh the irony.
Oh the irony.
4
Is a reporter a priest?
If one does not want material given to a reporter to be used in a trial or anywhere, then one should not talk to reporters. Nobody forced anybody to talk to reporters or to give them material.
New York's shield law is meant to protect journalists, not criminals. News gathering is not necessarily though the most important factor re the pursuit of justice.
If one does not want material given to a reporter to be used in a trial or anywhere, then one should not talk to reporters. Nobody forced anybody to talk to reporters or to give them material.
New York's shield law is meant to protect journalists, not criminals. News gathering is not necessarily though the most important factor re the pursuit of justice.
20
With this argument, people should not confess to priests, either. If the justice system protocols involved pulling priests into the process, that would be a problem, too, and it would have similar chilling effects on trust in the Church. Journalists need protection so they can report all aspects of events, both objective and subjective.
67
There is a big difference between talking to a priest, where confidentiality is expected, and talking to a newspaper reporter, where the expectation is that everyything you say may be published and available to everyone.
3
At some point doesn't the American public have a compelling interest to have access to information a reporter might uncover? Trusting the government to do the right thing is great, a free press is far more comforting to many people.
2